The Constitutional History of England, From the Accession of Henry VII to the Death of George II (New York W. J. Widdleton, 1871) by Henry Hallam Pt 3
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Title:The constitutional history of England, from the accession of Henry VII. to the death of George II.; by Henry Hallam …

Author:Hallam, Henry, 1777-1859.

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Print Source:The constitutional history of England, from the accession of Henry VII. to the death of George II.; by Henry Hallam …

Hallam, Henry, 1777-1859.

3 v. 19 1/2cm.

New York,

W. J. Widdleton,

1871.

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THE CONSTITUTIONAL HISTORY OF ENGLAND FROM THE ACCESSION OF HENRY VII. TO

THE DEATH OF GEORGE II. VOLUME IlL

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THE CONSTITUTIONAL HISTORY OF ENGLAND FROM THE ACCESSION OF HENRY VII. TO

THE DEATH OF GEORGE II. BT HENRY HALLAM, LL.D., F.R.A.S. FOREIGN ASSOCIATE

OF TII INSTITUTE OF FRANmC IN THREE VOLUMES. VOLUME III. NEW YORK: W. J.

WIDDLETON, PUBLISHER. 1871.

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CAMBRID$E: PRESSWORK BY JQOLN WILSON AND SON.

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CONTENTS OF THE THIRD VOLUME. CHAPTER XIII. ON THE STATE OF THE

CONSTITUTION UNDER CHARLES I. Effect of the Press -Restrictions upon it before and after the RestorationLicensing Acts - Political Writings checked by the Judges - Instances of illegal Proclamations not numerous Juries fined for VerdictsQuestion of their Right to return a general Verdict - Habeas Corpus Act passed-Differences between Lords and Commons Judicial Powers of the Lords historically traced Their Pretensions about the Time of the Restoration - Resistance made by the Commons - Dispute about their original Jurisdiction -and that in Appeals from Courts of Equity - Question of the exclusive Right of the Commons as to Money Bills - Its History - The Right extended farther - State of the Upper House under the Tudors and Stuarts -Augmentation of the Temporal Lords -State of the Commons Increase of their Members-Question as to Rights of Election -

Four different Theories as to the original Principle-Their Probability considered…………………. Page 9 CHAPTER XIV. THE REIGN OF JAMES

II. Designs of the King-Parliament of 1685-King’s intention to Repeal the Test Act-Deceived as to the Dispositions of his Subjects-Prorogation of Parliament-Dispensing Power confirmed by the Judges -Ecclesiastical Commission-King’s Scheme of establishing Popery -Dismissal of Lord Rochester-Prince of Orange alarmed-Plan of setting the Princess aside-Rejected by the KingOvertures of the Malecontents to Prince of Orange - Declaration for Liberty of Conscience -Addresses in favor of it -

New-modelling of the Corporations-Affair of Magdalen College Infatuation of the King-His Coldness towards Louis - Invitation signed to the Prince of Orange - Birth of Prince of

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vi CONTENTS OF THE THIRD VOLUME. Wales-Justice and Necessity of the Revolution-Favorable Circumstances attending it-Its salutary Consequences-Proceedings of the Convention-Ended by the Elevation of William and Mary to the

Throne………………………………………. Page 54 CHAPTER XV.

ON THE REIGN OF WILLIAM III. Declaration of Rights-Bill of Rights-Military Force without Consent declared illegal-Discontent with the new Government-Its Causes -Incompatibility of the Revolution with received Principles-Character and Errors of William - Jealousy of the Whigs - Bill of Indemnity-Bill for restoring CorporationsSettlement of the Revenue 

Appropriation of Supplies - Dissatisfaction of the King - No Republican Party in Existence - William employs Tories in Ministry - Intrigues with the late King - Schemes for his Restoration - Attainder of Sir John Fenwick - Ill Success of the War - Its Expenses - Treaty of Ryswick -

Jealousy of the Commons - Army reduced - Irish Forfeitures resumed 

Parliamentary Inquiries - Treaties of Partition  Improvements in Constitution under William - Bill for Triennial Parliaments - Law of Treason - Statute of Edward III. - Its constructive Interpretation- -

Statute of William III. - Liberty of the Press-Law of Libel - Religious Toleration - Attempt at Comprehension - Schism of the Nonjurors -Laws against Roman Catholics-Act of Settlement -Limitations of Prerogative contained in it -Privy Council superseded by a Cabinet - Exclusion of Placemen and Pensioners from Parliament -Independence of Judges-Oath of Abjuration…………….. 104 CHAPTER XVI. ON THE STATE OF THE

CONSTITUTION IN THE REIGNS OF ANNE, GEORGE I., AND GEORGE II. Termination of Contest between the Crown and Parliament-Distinctive Principles of Whigs and Tories - Changes effected in these by Circumstances-Impeachment of Sacheverell displays them again-Revolutions in the Ministry under Anne - War of the Succession - Treaty of Peace broken off-Renewed again by the Tory Government Arguments for and against the Treaty of Utrecht-The Negotiation mismanaged - Intrigues of the Jacobites - Some of the Ministers engage in them - Just Alarm for the Hanover Succession -

Accession of George I. - Whigs come into Power - Great Disaffection in the Kingdom - Impeachment of Tory Ministers Bill for Septennial Parliaments 

Peerage Bill - Jacobitism among the Clergy-Convocation - its Encroachments - Hoadley - Convocation no longer suffered to sit -

Infringements of the Toleration by Statutes under Anne - They are repealed by the Whigs Principles of Toleration fully established

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CONTENTS OF THE THIRD VOLUME. vii Banishment of Atterbury -Decline of the Jacobites - Prejudices against the Reigning Family-Jealousy of the Crown-Changes in the Constitution whereon it was founded - Permanent Military Force - Apprehensions from it - Establishment of Militia -

Influence over Parliament by Places and Pensions - Attempts to restrain it - Place Bill of 1743 - Secret Corruption - Commitments for Breach of Privilege - of Members for Offences - of Strangers for Offences against Members - or for Offences against the House - Kentish Petition of 1701 -

Dispute with Lords about Aylesbury Election - Proceedings against Mr.

Murray in 1751 - Commitments for Offences unconnected with the House-Privileges of the House not controllable by Courts of Law - Danger of stretching this too far Extension of Penal Laws Diminution of Personal Authority of the Crown - Causes of this - Party Connections - Influence of Political Writings-Publication of Debates - Increased Influence of the Middle Ranks………………………… Page 193 CHAPTER XVII. ON THE

CONSTITUTION OF SCOTLAND. Early State of Scotland - Introduction of Feudal System - Scots ParliamentPower of the Aristocracy-Royal Influence in ParliamentJudicial Power - Court of Session -Reformation-Power of the Presbyterian Clergy Their Attempts at Independence on the State - Andrew Melville - Success of James VI. in restraining them - Establishment of Episcopacy - Innovations of Charles I. - Arbitrary Government-Civil War-Tyrannical Government of Charles II. - Reign of James VII. - Revolution and Establishment of Presbytery - Reign of William III. - Act of Security -Union-Gradual Decline of

Jacobitism……………………………………. 292 CHAPTER XVIII.

ON THE CONSTITUTION OF IRELAND. Ancient State of Ireland-Its Kingdoms and Chieftainships-Law of Tanistry and Gavelkind - Rude State of Society 

Invasion of Henry I. - Acquisitions of English Barons - Forms of English Constitution established - Exclusion of native Irish from them -

Degeneracy of English Settlers-Parliament of Ireland-Disorderly State of the Island - The Irish regain Part of their territories - English Law confined to the Pale-Poyning’s Law-Royal Authority revives under Henry VIII.- Resistance of Irish to Act of Supremacy-Protestant Church established by Elizabeth-Effects of this Measure - Rebellions of her Reign - Opposition in Parliament-Arbitrary Proceedings of Sir Henry Sidney - James I. - Laws against Catholics enforced - English Law established throughout Ireland-Settlements of English in Munster, Ulster, and other Parts - Injustice attending them - Constitution of Irish

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viii CONTENTS OF THE THIRD VOLUME. Parliament - Charles I. promises Graces to the Irish  Does not confirm them - Administration of Strafford -

Rebellion of 1641 - Subjugation of Irish by Cromwell - Restoration of Charles II. - Act of Settlement - Hopes of Catholics under Charles and James - War of 1689, and final Reduction of Ireland -Penal Laws against Catholics -Dependence of Irish on English Parliament Growth of a patriotic party in 1753…………….. Page 327

INDEX…………………………………………….. 88

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THE CONSTITUTIONAL HISTORY OF ENGLAND FROM HENRY VII. TO GEORGE IL CHAPTER

XIII. ON THE STATE OF THE CONSTITUTION UNDER CHARLES II. Effect of the Press -Restrictions upon it before and after the RestorationLicensing Acts - Political Writings checked by the Judges - Instances of Illegal Proclamations not numerous - Juries fined for Verdicts - Question of their Right to return a General Verdict - Habeas Corpus Act passed - Differences between Lords and Commons -Judicial Powers of the Lords historically traced -Their Pretensions about the Time of the Restoration - Resistance made by the Commons - Dispute about their original Jurisdiction-And that in Appeals from Courts of Equity-Question of the exclusive Right of the Commons as to Money Bills  Its History -The Right extended farther -

State of the Upper House under the Tudors and Stuarts - Augmentation of the Temporal Lords - State of the Commons-Increase of their Members-Question as to Rights of Election -Four different Theories as to the Original Principle - Their Probability considered. IT may seem rather an extraordinary position, after the last chapters, yet is strictly true, that the fundamental privileges of the subject were less invaded, the prerogative swerved into fewer excesses, during the reign of Charles II.

than in any former period of equal length. Thanks to the patriotic energies of Selden and Eliot, of Pym and Hampden, the constitutional boundaries of royal power had been so well established that no minister was daring enough to attempt any flagrant and general violation of them.

The frequent session of parliament, and its high estimation of its own privileges, furnished a security against illegal taxation. Nothing of this sort has been imputed to the government of Charles, the first king of England, perhaps, whose reign was wholly free from such a charge. And as the nation happily escaped the attempts that were made after the Restoration to revive the star-chamber and high commission courts, there were no

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10 EFFECT OF THE PRESS. CHAP. XIII. means of chastising political delinquencies except through the regular tribunals of justice and through the verdict of a jury. Ill as the one were often constituted, and submissive as the other might often be found, they afforded something more of a guaranty, were it only by the publicity of their proceedings, than the dark and silent divan of courtiers and prelates who sat in judgment under the two former kings of the house of Stuart. Though the bench was frequently subservient, the bar contained high-spirited advocates whose firm defence of their clients the judges often reproved, but no longer affected to punish. The press, above all, was in continual service. An eagerness to peruse cheap and ephemeral tracts on all subjects of passing interest had prevailed ever since the Reformation. These had been extraordinarily multiplied from the meeting of the long parliament. Some thousand pamphlets of different descriptions, written between that time and the Restoration, may be found in the British Museum; and no collection can be supposed to be perfect. It would have required the summary process and stern severity of the court of star-chamber to repress this torrent, or reduce it to those bounds which a government is apt to consider as secure. But the measures taken with this view under Charles II. require to be distinctly noticed. In the reign of Henry VIII., when the political importance of the art of printing, especially in the great Effect of the press. question of the Reformation, began to be appreRestrictions hended, it was thought necessary to assume an before and absolute control over it, partly by the king’s genafter the Restortion. eral prerogative, and still more by virtue of his ecclesiastical supremacy.l Thus it became usual to grant by letters-patent the exclusive right of printing the Bible or religious books, and afterwards all others. The privilege of keeping presses was limited to the members of the stationers’ company, who were bound by regulations 1 It was said in 18 Car. 2 (1666) that man’s liberty to print that would.” 1’ the king by the common law hath a Mod. Rep. 258.

Kennet informs us that, general prerogative over the printing-several complaints having been made of press; so that none ought to print a book Lilly s Grammar, the use of which had for public usewithout his license.”

This been prescribed by the royal ecclesiastical seems, however, to have been in the ar-supremacy, it was thought proper in 1664 gument of counsel; but the court held that a new public form of grammar that a patent to print law-books exclu-should be drawn up and approved in consively was no monopoly. Carter’s Revocation, to be enjoined by the royal auports, 89. “Matters of state and things thority. One was accordingly brought that concern the government,” it is said in by bishop Pearson. but the matter in another case, ” were never left to any dropped.

Life of Charles II. 274.

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CHA. II. - Constitution. LICENSING ACTS. 11 established in the reign of Mary by the star-chamber, for the contravention of which they incurred the speedy chastisement of that vigilant tribunal. These regulations not only limited the number of presses, and of men who should be employed on them, but subjected new publications to the previous inspection of a licenser.

The long parliament did not hesitate to copy this precedent of a tyranny they had overthrown; and, by repeated ordinances against unlicensed printing, hindered, as far as in them lay, this great instrument of political power from serving the purposes of their adversaries. Every government, however popular in name or origin, must have some uneasiness from the great mass of the multitude, some vicissitudes of public opinion to apprehend; and experience shows that republics, especially in a revolutionary season, shrink as instinctively, and sometimes as reasonably, from an open license of the tongue and pen, as the most jealous court. We read the noble apology of Milton for the freedom of the press with admiration; but it had little influence on the parliament to whom it was addressed. It might easily be anticipated, from the general spirit of lord Clarendon’s administration, that he would not Licensing suffer the press to emancipate itself from these acts. established shackles.1 A bill for the regulation of printing failed in 1661, from the commons’ jealousy of the peers, who had inserted a clause exempting their own houses from search.2 But next year a statute was enacted, which, reciting “the wellgovernment and regulating of printers and printing-presses to be matter of public care and concernment, and that by the general licentiousness of the late times many evil-disposed persons had been encouraged to print and sell heretical and seditious books,”

prohibits every private person from printing any book or pamphlet, unless entered with the stationers’ company, and duly licensed in the following manner: to wit, books of law by the chancellor or one of the chief-justices, of history and politics by the secretary of state, of heraldry by the kings at arms, of divinity, physic, or philosophy, by the bishops of Canterbury or London, or, if printed at either university, by its chancellor. The number 1 We find an order of council, June 7, ” which are very pernicious to monarchy, 1660, that the stationers’ company do and injurious to his majesty’s blessed seize and deliver to the secretary of state progenitors.” Kennet’s Register, 176. all copies of Buchanan’s History of Scot-This was beginning early. land, and De Jure Regni apud Scotos, 2 Commons’ Journals, July 29, 1661.

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12 POLITICAL WRITINGS CHECKED CHAP. XIII. of master-printers was limited to twenty; they were to give security, to affix their names, and to declare the author, if required by the licenser. The king’s messengers, by warrant from a secretary of state, or the master and wardens of the stationers’ company, were empowered to seize unlicensed copies wherever they should think fit to search for them, and, in case they should find any unlicensed books suspected to contain matters contrary to the church or state, they were to bring them to the two bishops before mentioned, or one of the secretaries. No books were allowed to be printed out of London, except in York and in the universities. The penalties for printing without license were of course heavy.1 This act was only to last three years; and, after being twice renewed, (the last time until the conclusion of the first session of the next parliament,) expired consequently in 1679; an era when the house of commons were happily in so different a temper that any attempt to revive it must have proved abortive. During its continuance the business of licensing books was intrusted to sir Roger L’Estrange, a well-known pamphleteer of that age, and himself a most scurrilous libeller in behalf of the party he espoused, that of popery and despotic power. It is hardly necessary to remind the reader of the objections that were raised to one or two lines in Paradise Lost. Though a previous license ceased to be necessary, it Political was held by all the judges, having met for this checked by purpose (if we believe chief-justice Scroggs), by the judges. the king’s command, that all books scandalous to the government or to private persons may be seized, and the authors or those exposing such books punished; and that all writers of false news, though not scandalous or seditious, are indictable on that account.2 But in a subsequent trial he informs the jury that, “when by the king’s command we were to give in our opinion what was to be done in point of regulation of the press, we did all subscribe that to print or publish any news, books, or pamphlets of news whatsoever, is illegal; that it is a manifest intent to the breach of the peace, and they may be proceeded against by law as an illegal thing.8 Suppose now that this thing is not scandalous, 1 14 Car.

2, c. 83. day the judges made their report to his 2 State Trials, vii.

929. majesty in council, in pursuance of an 8 This declaration of the judges is re-order of this board, by which they unancorded in the following passage of the imously declare that his majesty may by London Gazette, May 5, 1680:-” This law prohibit the printing and publishing

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CHA. II. - Constitution. BY THE JUDGES. 13 what then? If there had been no reflection in this book at all, yet it is illicite; and the author ought to be convicted for it. And that is for a public notice to all people, and especially printers and booksellers, that they ought to print no book or pamphlet of news whatsoever without authority.” The pretended libel in this case was a periodical pamphlet, entitled the Weekly Pacquet of Advice from Rome; being rather a virulent attack on popery than serving the purpose of a newspaper. These extraordinary propositions were so far from being loosely advanced, that the court of king’s bench proceeded to make an order that the book should no longer be printed or published by any person whatsoever.1 Such an order was evidently beyond the competence of that court, were even the prerogative of the king in council as high as its warmest advocates could strain it. It formed accordingly one article of the impeachment voted against Scroggs in the next session.2 Another was for issuing general warrants (that is, warrants wherein no names are mentioned) to seize seditious libels and apprehend their authors.8 But this impeachment having fallen to the ground, no check was put to general warrants, at least issued by the secretary of state, till the famous judgment of the court of common pleas in 1763. Those encroachments on the legislative supremacy of parliament, and on the personal rights of the subject, by means of proclamations issued from the privy council, which had rendered former princes of Instances of both the Tudor and Stuart families almost arbi-lamations trary masters of their people, had fallen with the not nuodious tribunal by which they were enforced. The king was restored to nothing but what the law had preserved to him. Few instances appear of illegal proclamations in his reign. One of these, in 1665, required all officers and soldiers who had served in the armies of the late of all news-books and pamphlets of news 1 State Trials, vii. 1127; viii. 184, 197. whatsoever not licensed by his majesty’s Even North seems to admit that this was authority, as manifestly tending to the a stretch of power. Examen, 564. breach of the peace and disturbance of 2 State Trials, viii. 163. the kingdom. Whereupon his majesty 8 It seems that these warrants, though was pleased to direct a proclamation to be usual, were known to be against the law. prepared for the restraining the printing State Trials, vii. 949, 956. Possibly they of news-books and pamphlets of news might have been justified under the words without leave.” Accordingly such a of the licensing act, while that was in proclamation appears in the Gazette of force, and, having been thus introduced, May 17. were not laid aside.

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14 ILLEGAL PROCLAMATIONS. CHAP. XIII usurped powers to depart the cities of London and West minster, and not to return within twenty miles of them before the November following. This seems connected with the well-grounded apprehension of a republican conspiracy.l Another, immediately after the Fire of London, directed the mode in which houses should be rebuilt, and enjoined the lord mayor and other city magistrates to pull down whatsoever obstinate and refractory persons might presume to erect upon pretence that the ground was their own; and especially that no houses of timber should be erected for the future.2 Though the public benefit of this last restriction, and of some regulations as to the rebuilding of a city which had been destroyed in great measure through the want of them, was sufficiently manifest, it is impossible to justify the tone and tenor of this proclamation; and more particularly as the meeting of parliament was very near at hand. But an act having passed therein for the same purpose, the proclamation must be considered as having had little effect. Another instance, and far less capable of extenuation, is a proclamation for shutting up coffee-houses, in December, 1675. I have already mentioned this as an intended measure of lord Clarendon. Coffee-houses were all at that time subject to a license, granted by the magistrates at quarter sessions. But, the licenses having been granted for a certain time, it was justly questioned whether they could in any manner be revoked. This proclamation being of such disputable legality, the judges, according to North, were consulted, and intimating to the council that they were not agreed in opinion upon the most material questions submitted to them, it seemed advisable to recall it.8 In this essential matter of proclamations, therefore, the administration of Charles II. is very advantageously compared with that of his father; and, considering at the same time the entire cessation of impositions of money without consent of parliament, we must admit that, however dark might be his designs, there were no such general infringements of public liberty in his reign as had continually occurred before the long parliament. One undeniable fundamental privilege had survived the shocks of every revolution; and in the worst times, except 1 Kennet’s Charles II. 277. Kennet, 837. Hume of course pretends S

State Trials, vi. 837. that this proclamation would have been a Ralph, 297; North’s Examen, 139; reckoned legal in former times.

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CIA. II. - Constitution. JURIES FINED FOR VERDICTS. 15 those of the late usurpation, had been the standing record of primeval liberty - the trial by jury: whatever infringement had been made on this, in many cases of misdemeanor, by the present jurisdiction of the star-chamber, it was impossible, after the bold reformers of 1641 had lopped off that unsightly excrescence from the constitution, to prevent a criminal charge from passing the legal course of investigation through the inquest of a grand jury and the verdict in open court of a petty jury. But the judges, and other ministers of justice, for the sake of their own authority or that of the crown, devised various means of subjecting juries to their own direction, by intimidation, by unfair returns of the panel, or by narrowing the boundaries of their lawful function. It is said to have been the practice in early times, as I have mentioned from sir Thomas Smith in another place, to fine Juries fined juries for returning verdicts against the direction for verdicts. of the court, even as to matter of evidence, or to summon them before the star-chamber. It seems that instances of this kind were not very numerous after the accession of Elizabeth; yet a small number occur in our books of reports. They were probably sufficient to keep juries in much awe. But after the restoration, two judges, Hyde and Keeling, successively chief-justices of the king’s bench, took on them to exercise a pretended power, which had at least been intermitted in the time of the commonwealth. The grand jury of Somerset, having found a bill for manslaughter instead of murder, against the advice of the latter judge, were summoned before the court of king’s bench, and dismissed with a reprimand instead of a fine.1 In other cases fines were set on petty juries for acquittals against the judge’s direction. 1 Sir Hugh Wyndham and others of the judge; that the intention of their of the grand jury of Somerset were at finding indictments is, that there might the last assizes bound over, by lord Ch. be no malicious prosecution; and thereJ. Keeling, to appear at the K. B. the fore, if the matter of the indictment be first day of this term, to answer a misde-not framed of malice, but is verisimilis, meanor for finding upon a bill of mur-though it be not vera, yet it answers der,‘billa vera quoad manslaughter,’ their oaths to present it. Twisden said against the directions of thejudge. Upon he had known petty juries punished in their appearance they were told by the my lord chief-justice Hyde’s time for court, being full, that it was a misde-disobeying of the judge’s directions in meanor in them, for they are not to point of law. But, because it was a misdistinguish betwixt murder and man-take in their judgments rather than an slaughter; for it is only the circum-obstinacy, the court discharged them stance of malice which makes the differ-without any fine or other attendance.” ence, and that may be implied by the Pasch. 19 Car. 2. Keeling, Ch. J. Twis. law without any fact at all, and so it den, Wyndham, Morton, justices; Harlies not in the judgment of a jury, but grave MSS., vol. 339.

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16 RIGHT OF JURIES TO RETURN CHAP. XII. This unusual and dangerous inroad on so important a right attracted the notice of the house of commons; and a committee was appointed, who reported some strong resolutions against Keeling for illegal and arbitrary proceedings in his office, the last of which was, that he be brought to trial, in order to condign punishment, in such manner as the house should deem expedient. But the chief-justice, having requested to be heard at the bar, so far extenuated his offence that the house, after resolving that the practice of fining or imprisoning jurors is illegal, came to a second resolution to proceed no farther against him.1 The precedents, however, which these judges endeavored Question of to establish, were repelled in a more decisive their right manner than by a resolution of the house of comgeneralver-mons. For in two cases, where the fines thus diet. imposed upon jurors had been estreated into the exchequer, Hale, then chief baron, with the advice of most of the judges of England, as he informs us, stayed process; and in a subsequent case it was resolved by all the judges, except one, that it was against law to fine a jury for giving a verdict contrary to the court’s direction. Yet notwithstanding this very recent determination, the recorder of London, in 1670, upon the acquittal of the quakers, Penn and Mead, on an indictment for an unlawful assembly, imposed a fine of forty marks on each of the jury.2 Bushell, one of their number, being committed for non-payment of this fine, sued his writ of habeas corpus from the court of common pleas; and, on the return made, that he had been committed for finding a verdict against full and manifest evidence, and against the direction of the court, chief-justice Vaughan held the ground to be insufficient, and discharged the party. In his reported judgment on this occasion he maintains the practice of fining jurors, merely on this account, to be comparatively recent, and clearly against law.8 No later instance of it is recorded; and perhaps it can only be ascribed to the violence that still prevailed in the house of commons against nonconformists that the recorder escaped its animadversion. In this judgment of the chief-justice Vaughan he was led to enter on a question much controverted in later times  1 Journals, 16th Oct. 1667. 8 Vaughan’s Reports. State Trials,v. 2 State Trials, vi. 967. 999.

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CHA. II. - Constitution. A GENERAL VERDICT. 17 the legal right of the jury, without the direction of the judge, to find a general verdict in criminal cases, where it determines not only the truth of the facts as deposed, but their quality of guilt or innocence; or, as it is commonly, though not perhaps quite accurately worded, to judge of the law as well as the fact. It is a received maxim with us, that the judge cannot decide on questions of fact, nor the jury on those of law. Whenever the general principle, or what may be termed the major proposition of the syllogism, which every litigated case contains, can be extracted from the particular circumstances to which it is supposed to apply, the court pronounce their own determination, without reference to a jury. The province of the latter, however, though it properly extend not to any general decision of the law, is certainly not bounded, at least in modern times, to a mere estimate of the truth of testimony. The intention of the litigant parties in civil matters, of the accused in crimes, is in every case a matter of inference from the testimony or from the acknowledged facts of the case; and wherever that intention is material to the issue, is constantly left for the jury’s deliberation. There are indeed rules in criminal proceedings which supersede this consideration; and where, as it is expressed, the law presumes the intention in determining the offence.

Thus, in the common instance of murder or manslaughter, the jury cannot legally determine that provocation to be sufficient which by the settled rules of law is otherwise; nor can they, in any case, set up novel and arbitrary constructions of their own without a disregard of their duty.

Unfortunately it has been sometimes the disposition of judges to claim to themselves the absolute interpretation of facts, and the exclusive right of drawing inferences from them, as it has occasionally, though not perhaps with so much danger, been the failing of juries to make their right of returning a general verdict subservient to faction or prejudice.

Vaughan did not of course mean to encourage any petulance in juries that should lead them to pronounce on the law, nor does he expatiate so largely on their power as has sometimes since been usual; but confines himself to a narrow, though conclu. sive, line of argument, that, as every issue of fact must be supported by testimony, upon the truth of which the jury are exclusively to decide, they cannot be guilty of any legal misdemeanor in returning their verdict, though apparently VOL. III. 2

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18 HABEAS CORPUS ACT. CHAP. XIII, against the direction of the court in point of law; since it cannot ever be proved that they believed the evidence upon which that direction must have rested.1 I have already pointed out to the reader’s notice that Habeas article of Clarendon’s impeachment which charges corpus act him with having caused many persons to be impassed. W passed. prisoned against law.2 These were released by the duke of Buckingham’s administration, which in several respects acted on a more liberal principle than any other in this reign. The practice was not, however, wholly discontinued. Jenkes, a citizen of London on the popular or fhctious side, having been committed by the king in council for a mutinous speech in Guildhall, the justices at quarter sessions refused to admit him to bail, on pretence that he had been committed by a superior court; or to try him, because he was not entered in the calendar of prisoners. The chancellor, on application for a habeas corpus, declined to issue it during the vacation; and the chief-justice of the king’s bench, to whom, in the next place, the fiiends of Jenkes had recourse, made so many difficulties that he lay in prison for several weeks.8 This has been commonly said to have produced the famous act of habeas corpus. But this is not truly stated. The arbitrary proceedings of lord Clarendon were what really gave rise to it. A bill to prevent the refusal of the writ of habeas corpus was brought into the house on April 10, 1668, but did not pass the committee in that session.4 But another to the same purpose, probably more remedial, was sent up to the lords in March, 1669-70.5 It failed of success in the upper house; but the commons continued to repeat their struggle for this important measure, and in the session of 1673-4
passed two bills, one to prevent the imprisonment of the subject in jails beyond the seas, another to give a more expeditious use of the writ of habeas corpus in criminal matters.6 The same or similar 1 See Hargrave’s judicious observations 4 Commons’ Journals. As the titles on the province of juries. State Trials, only of these bills are entered in the vi. 1013.

Journals, their purport cannot be stated 2 Those who were confined by war-with absolute certainty. They might rants were forced to buy their liberty however, I suppose, be found in some of of the courtiers;- ” which,” says Pepys, the offices. (July 7, 1667,) “is a most lamentable 6 Parl. Hist.

661. It was opposed by thing that we do professedly own that the court. we do these things, not for right and 6 In this session, Feb. 14, a committee justice’ sake, but only to gratify this or was appointed to inspect the laws, and that person about the king.” consider how the king may commit any a State Trials, vi. 1189. subject by his immediate warrant. as the

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CHA. II. - Constitution. HABEAS CORPUS ACT. 19 bills appear to have gone up to the lords in 1675. It was not till 1676 that the delay of Jenkes’s habeas corpus took place. And this affair seems to have had so trifling an influence that these bills were not revived for the next two years, notwithstanding the tempests that agitated the house during that period.1

But in the short parliament of 1679 they appear to have been consolidated into one, that, having met with better success among the lords, passed into a statute, and is generally denominated the habeas corpus act.2 It is a very common mistake, and that not only among foreigners, but many from whom some knowledge of our constitutional laws might be expected, to suppose that this statute of Charles II. enlarged in a great degree our liberties, and forms a sort of epoch in their history. But though a very beneficial enactment, and eminently remedial in many cases of illegal imprisonment, it introduced no new principle, nor conferred any right upon the subject. From the earliest records of the English law, no freeman could be detained in prison, except upon a criminal charge or conviction, or for a civil debt. In the former case it was always in his power to demand of the court of king’s bench a writ of habeas corpus ad subjiciendum, directed to the person detaining him in custody, by which he was enjoined to bring up the body of the prisoner, with the warrant of commitment, that the court might judge of its sufficiency, and remand the party, admit him to bail, oi discharge him, according to the nature of the charge. This writ issued of right, and could not be refused by the court.

It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided in Magna Charta (if indeed it were not much more ancient), law now stands, and report the same to without seal or the hand of any secretary the house, and also how the law now or officer of state or justice, is bad. 2 stands touching commitments of persons Jac. 2, B.

R.; 2 Shower, 484. by the council-table. Ralph supposes 1 In the Parliamentary History, 845, (p. 255) that this gave rise to the habeas we find a debate on the petition of one corpus act, which is certainly not the Harrington to the commons in 1677, who case. The statute 16 Car. 1, c.

10, seems had been committed to close custody by to recognize the legality of commitments the council. But as his demeanor was by the king’s special warrant, or by the alleged to have been disrespectful, and privy council, or some, at least, of its the right of the council to commit was members singly; and probably this, with not disputed, and especially as he seems long usage, is sufficient to support the to have been at liberty when the debate controverted authority of the secretary took place, no proceedings ensued, though of state. As to the privy council, it is the commitment had not been altogether not doubted, I believe, that they may regular. Ralph (p. 314) comments more commit. But it has been held, even in severely on the behavior of the house the worst of times, that a warrant of than was necessary. commitment under the king’s own hand, 2 31 Car. 2. c. 2.

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20 HABEAS CORPUS ACT. CHAP. XIII that the statute of Charles II. was enacted, but to cut off the abuses by which the government’s lust of power, and the servile subtlety of crown lawyers, had impaired so fundamental a privilege. There had been some doubts whether the court of common pleas could issue this writ; and the court of exchequer seems never to have done so.1 It was also a question, and one of more importance, as we have seen in the case of Jenkes, whether a single judge of the court of king’s bench could issue it during the vacation. The statute therefore enacts that where any person, other than persons convicted or in execution upon legal process, stands committed for any crime, except for treason or felony plainly expressed in the warrant of commitment, he may during the vacation complain to the chancellor, or any of the twelve judges, who, upon sight of a copy of the warrant, or an affidavit that a copy is denied, shall award a habeas corpus directed to the officer in whose custody the party shall be, commanding him to bring up the body of his prisoner within a time limited according to the distance, but in no case exceeding twenty days, who shall discharge the party from imprisonment, taking surety for his appearance in the court wherein his offence is cognizable. A jailer refusing a copy of the warrant of commitment, or not obeying the writ, is subjected to a penalty of 1001.; and even the judge denying a habeas corpus, when required according to this act, is made liable to a penalty of 5001. at the suit of the injured party. The court of king’s bench had already been accustomed to send out their writ of habeas corpus into all places of peculiar and privileged jurisdiction, where this ordinary process does not run, and even to the island of Jersey, beyond the strict limits of the kingdom of England; 2 and this power, which might admit of some question, is sanctioned by a declaratory clause of the present statute. Another section enacts, that “no subject of this realm that now is, or hereafter shall be, an inhabitant or resiant of this kingdom of England, dominion of Wales, or town of Berwick-upon-Tweed, shall be sent prisoner into 1 The puisne judges of the common to bring up the body of Overton, a wellpleas granted a habeas corpus against the known officer of the commonwealth, who opinion of chief-justice Vaughan, who had been confined there several years. denied the court to have that power.

Siderfin’s Reports, 386. This was in Carter’s Reports, 221. 1668, after the fall of Clarendon, when a 2 The court of king’s bench directed a less despotic system was introduced. habeas corpus to the governor of Jersey

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CHA. II. - Constitution. HABEAS CORPUS ACT. 21 Scotland, Ireland, Jersey, Guernsey, Tangier, or into parts, garrisons, islands, or places beyond the seas, which are, or at any time hereafter shall be, within or without the dominions of his majesty, his heirs or successors,” under penalties of the heaviest nature short of death which the law then knew, and an incapacity of receiving the king’s pardon. The great rank of those who were likely to offend against this part of the statute was, doubtless, the cause of this unusual severity. But as it might still be practicable to evade these remedial provisions by expressing some matter of treason or felony in the warrant of commitment, the judges not being empowered to inquire into the truth of the facts contained in it, a further security against any protracted detention of an innocent man is afforded by a provision of great importance-that every person committed for treason or felony, plainly and specially expressed in the warrant, may, unless he shall be indicted in the next term, or at the next sessions of general jaildelivery after his commitment, be, on prayer to the court, released upon bail, unless it shall appear that the crown’s witnesses could not be produced at that time; and if he shall not be indicted and tried in the second term or sessions of jaildelivery, he shall be discharged. The remedies of the habeas corpus act are so effectual that no man can possibly endure any long imprisonment on a criminal charge, nor would any minister venture to exercise a sort of oppression so dangerous to himself.

But it should be observed that, as the statute is only applicable to cases of commitment on such a charge, every other species of restraint on personal liberty is left to the ordinary remedy as it subsisted before this enactment. Thus a party detained without any warrant must sue out his habeas corpus at common law; and this is at present the more usual occurrence, But the judges of the king’s bench, since the statute, have been accustomed to issue this writ during the vacation in all cases whatsoever. A sensible difficulty has, however, been sometimes felt, from their incompetency to judge of the truth of a return made to the writ.

For, though in cases within the statute the prisoner may always look to his legal discharge at the next sessions of jaildelivery, the same redress might not always be obtained when he is not in custody of a common jailer. If the person therefore who detains any

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22 DIFFERENCES BETWEEN CHAP. XIII. one in custody should think fit to make a return to the writ of habeas corpus, alleging matter sufficient to justify the party’s restraint, yet false in fact, there would be no means, at least by this summary process, of obtaining relief. An attempt was made in 1757, after an examination of the judges by the house of lords as to the extent and efficiency of the habeas corpus at common law, to render their jurisdiction more remedial.1 It failed, however, for the time, of success; but a statute has recently been enacted 2 which not only extends the power of issuing the writ during the vacation, in cases not within the act of Charles II., to all the judges, but enables the judge before whom the writ is returned to inquire into the truth of the facts alleged therein, and, in case they shall seem to him doubtful, to release the party in custody, on giving surety to appear in the court to which such judge shall belong, on some day in the ensuing term, when the court may examine by affidavit into the truth of the facts alleged in the return, and either remand or discharge the party, according to their discretion.

It also declared that a writ of habeas corpus shall run to any harbor or road on the coast of England, though out of the body of any county; in order, I presume, to obviate doubts as to the effects of this remedy in a kind of illegal detention, more likely perhaps than any other to occur in modern times, on board of vessels upon the coast. Except a few of this description, it is very rare for a habeas corpus to be required in any case where the government can be presumed to have an interest. The reign of Charles II. was hardly more remarkable by the vigilance of the house of commons against Differences between arbitrary prerogative than by the warfare it waged lords and against whatever seemed an encroachment or usurpation in the other house of parliament. It has been a peculiar happiness of our constitution that such dissensions have so rarely occurred. I cannot recollect any republican government, ancient or modern (except perhaps some of the Dutch provinces), where hereditary and democratical authority have been amalgamated so as to preserve both in effect and influence, without continual dissatisfaction 1 See the lords’

questions and answers out of a case of impressment, where the of the judges in Parl. list. xv. 898; or expeditious remedy of habeas corpus is Bacon’s Abridgment, tit. Habeas Corpus; eminently necessary. iso Wilmot’s Judgments, 81. This arose 2 56 G. III. c. 100.

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CHA. II. - Constitution. THE TWO HOUSES. 23 and reciprocal encroachments; for though, in the most tranquil and prosperous season of the Roman state, one consul, and some magistrates of less importance, were invariably elected from the patrician families, these latter did not form a corporation, nor had any collective authority in the government. The history. of monarchies, including of course all states where the principality is lodged in a single person, that have admitted the aristocratical and popular temperaments at the same time, bears frequent witness to the same jealous or usurping spirit. Yet monarchy is unquestionably more favorable to the coexistence of an hereditary body of nobles with a representation of the commons than any other form of commonwealth; and it is to the high prerogative of the English crown, its exclusive disposal of offices of trust, which are the ordinary subjects of contention, its power of putting a stop to parliamentary disputes by a dissolution, and, above all, to the necessity which both the peers and the commons have often felt, of a mutual good understanding for the -maintenance of their privileges, that we must in a great measure attribute the general harmony, or at least the absence of open schism, between the two houses of parliament. This is, however, still more owing to the happy graduation of ranks, which renders the elder and the younger sons of our nobility two links in the unsevered chain of society; the one trained in the school of popular rights, and accustomed, for a long portion of their lives, to regard the privileges of the house whereof they form a part, full as much as those of their ancestors; the other falling without hereditary distinction into the class of other commoners, and mingling the sentiments natural to their birth and family affections with those that are more congenial to the whole community. It is owing also to the wealth and dignity of those ancient families who would be styled noble in any other country, and who give an aristocratical character to the 1 It was ordered, 21st Jan. 1549, that can fail to acknowledge, in binding tothe eldest son of the earl of Bedford gether the two branches of the legislashould continue in the house after his ture, and in keeping alive the sympathy father had succeeded to the peerage. for public and popular rights in the And, 9th Feb. 1575, that his son should English nobility (that sensus communis do so, ” according to the precedent in the which the poet thought so rare in high like case of the now earl his father.” It rank), is first recorded, and that twice is worthy of notice that this determina-over, in behalf of a family in whom the tion, which, at the time, seems to have love of constitutional freedom has become been thought doubtful, though very un-hereditary, and who may be justly said reasonably (Journals, 10th Feb.), but to have deserved, like the Valerii at which has had an influence which no one Rome, the surname of Publicolae.

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24 JUDICIAL POWER OF THE LORDS. CHAP. XIII. popular part of our legislature, and to the influence which the peers themselves, through the representation of small boroughs, are enabled to exercise over the lower house. The original constitution of England was highly aristoJudicial cratical. The peers of this realm, when sumpowers of moned to parliament (and on such occasions every the lords historically peer was entitled to his writ), were the necessary traced. counsellors and coadjutors of the king in all the functions that appertain to a government. In granting money for the public service, in changing by permanent statutes the course of the common law, they could only act in conjunction with the knights, citizens, and burgesses of the lower house of parliament. In redress of grievances, whether of so private a nature as to affect only single persons, or extending to a county or hundred, whether proceeding from the injustice of public officers or of powerful individuals, whether demanding punishment as crimes against the state, or merely restitution and damages to the injured party, the lords assembled in parliament were competent, as we find in our records, to exercise the same high powers, if they were not even more extensive and remedial, as the king’s ordinary council, composed of his great officers, his judges, and perhaps some peers, was wont to do in the intervals of parliament. These two, the lords and the privy council, seem to have formed, in the session, one body or great council, wherein the latter had originally right of suffrage along with the former.

In this judicial and executive authority the commons had at no time any more pretence to interfere than the council or the lords by themselves had to make ordinances, at least of a general and permanent nature, which should bind the subject to obedience. At the beginning of every parliament numerous petitions were presented to the lords, or to the king and lords (since he was frequently there in person, and always presumed to be so), complaining of civil injuries and abuse of power. These were generally indorsed by appointed receivers of petitions, and returned by them to the proper court whence relief was to be sought.’ For an immediate inquiry and remedy seem to have been rarely granted, except in cases of an extraordinary nature, when 1 The form of appointing receivers and continued without a debate in the house tryers of petitions, though intermitted of lords, and a division, in 1740. Parl. during the reign of William III., was Hist. xi. 1013. revived afterwards, and finally not dis

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CHA. II. - Constitution. JUDICIAL POWER OF THE LORDS. 25 the law was defective, or could not easily be enforced by the ordinary tribunals; the shortness of sessions, and multiplicity of affairs, preventing the upper house of parliament from entering so fully into these matters as the king’s council had leisure to do. It might perhaps be well questioned, notwithstanding the respectable opinion of Sir M. Hale, whether the statutes directed against the prosecution of civil and criminal suits before the council are so worded as to exclude the original jurisdiction of the house of lords, though their principle is very adverse to it. But it is remarkable that, so far as the lords themselves could allege from the rolls of parliament, one only instance occurs between 4 Henry IV.

(1403) and 43 Eliz. (1602) where their house had entered upon any petition in the nature of an original suit; though in that (1 Ed. IV. 1461) they had certainly taken on them to determine a question cognizable in the common courts of justice. For a distinction seems to have been generally made between cases where relief might be had in the courts below, as to which it is contended by Hale that the lords could not have jurisdiction, and those where the injured party was without remedy, either through defect of the law, or such excessive power of the aggressor as could defy the ordinary process. During the latter part at least of this long interval, the council and court of star-chamber were in all their vigor, to which the intermission of parliamentary judicature may in a great measure be ascribed. It was owing also to the longer intervals between parliaments from the time of Hen. VI., extending sometimes to five or six years, which rendered the redress of private wrongs by their means inconvenient and uncertain. In 1621 and 1624 the lords, grown bold by the general disposition in favor of parliamentary rights, made orders without hesitation on private petitions of an original nature. They continued to exercise this jurisdiction in the first parliaments of Charles I.; and in one instance, that of a riot at Banbury, even assumed the power of punishing a. misdemeanor unconnected with privilege. In the long parliament it may be supposed that they did not abandon this encroachment, as it seems to have been, on the royal authority, extending their orders both to the punishment of misdemeanors and to the awarding of damages.1 1

Hargrave, p. 60. The proofs are in the Lords’ Journals.

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26 PRETENSIONS OF THE LORDS. CHAP. XIIl. The ultimate jurisdiction of the house of lords, either by removing into it causes commenced in the lower courts, or by writ of error complaining of a judgment given therein, seems to have been as ancient, and founded on the same principle of a paramount judicial authority delegated by the crown, as that which they exercised upon original petitions. It is to be observed that the council or star-chamber did not pretend to any direct jurisdiction of this nature; no record was ever removed thither upon assignment of errors in an inferior court. But after the first part of the fifteenth century there was a considerable interval during which this appellant jurisdiction of the lords seems to have gone into disuse, though probably known to be legal.1

They began again, about 1580, to receive writs of error from the court of king’s bench; though for forty years more the instances were by no means numerous. But the statute passed in 1585, constituting the court of exchequer-chamber as an intermediate tribunal of appeal between the king’s bench and the parliament, recognizes the jurisdiction of the latter, that is, of the house of lords, in the strongest terms.2 To this power, therefore, of determining in the last resort, upon writs of error from the courts of common law, no objection could possibly be maintained. The revolutionary spirit of the long parliament brought Their pre-forward still higher pretensions, and obscured all tensions the landmarks of constitutional privilege. As the about the time of the commons took on themselves to direct the execuRestoration. tion of their own orders, the lords, afraid to be jostled out of that equality to which they were now content to be reduced, asserted a similar claim at the expense of the king’s prerogative. They returned to their own house on the Restoration with confused notions of their high jurisdiction, rather enhanced than abated by the humiliation they had undergone. Thus, before the king’s arrival, the commons having sent up for their concurrence a resolution that the persons and estates of the regicides should be seized, the upper house deemed it an encroachment on their exclusive 1 They were very rare after the acces-conclusive; though we may be fully warsion of Henry V.; but one occurs in 10th ranted in asserting that from Henry V. to Hen. VI., 1432, with which Hale’s list James I. there was very little exercise of concludes. ltargrave’s Preface to Hale, judicial power in parliament, either civp. 7. This editor justly observes that the illy or criminally.

incomplete state of the votes and early 2 27th Eliz. c. 8. journals renders the negative proof in

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CHA. II. - Constitution. RESISTANCE BY THE COMMONS. 27 judicature, and changed the resolution into ” an order of the lords on complaint of the commons.” 1 In a conference on this subject between the two houses, the commons denied their lordships to possess an exclusive jurisdiction, but did not press that matter.2 But in fact this order was rather of a legislative than judicial nature; nor could the lords pretend to any jurisdiction in cases of treason. They artfully, however, overlooked these distinctions, and made orders almost daily in the session of 1660, trenching on the executive power and that of the inferior courts. Not content with ordering the estates of all peers to be restored, free from seizure by sequestration, and with all arrears of rent, we find in their journals that they did not hesitate on petition to stay waste on the estates of private persons, and to secure the tithes of livings from which ministers had been ejected, in the hands of the churchwardens till their title could be tried.3 They acted, in short, as if they had a plenary authority in matters of freehold right where any member of their own house was a party, and in every case as full and equitable jurisdiction as the court of chancery. Though, in the more settled state of things which ensued, these anomalous orders do not so frequently occur, we find several assumptions of power which show a disposition to claim as much as the circumstances of any particular case should lead them to think expedient for the parties, or honorable to themselves.4 The lower house of parliament, which hardly reckoned itself lower in dignity, and was something more Resistance than equal in substantial power, did not look made by the without jealousy on these pretensions. They commons demurred to a privilege asserted by the lords of assessing themselves in bills of direct taxation; and, having on 1 Lords’ Journals, May 18,1660. Newport, &c. A still more extraordinary 2 Commons’ Journals, May 22. vote was passed August 16. Lord Mlhun 3 Lords’ Journals, June 4, 6, 14, 20, having complained of one Keigwin, and 22, et alibi seepe. “Upon information his attorney Danby, for suing him by given that some person in the late times common process in Michaelmas term had carried away goods from the house of 1651, in breach of privilege of peerage, the earl of Northampton, leave was the house voted that he should have damgiven to the said earl, by his servants ages: nothing could be more scandalously and agents, to make diligent and narrow unjust, and against the spirit of the bill search in the dwelling-houses of certain of indemnity. Three presbyterian peers persons, and to break open any door or protested. trunk that shall not be opened in obedi-4 They resolved in the case of the earl ence to the order.” June 26. The like of Pembroke, Jan. 30, 1678, that the order was made next day for the marquis single testimony of a commoner is not of Winchester, the earls of Derby and sufficient against a peer.

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28 JURISDICTION IN APPEALS. CHAP. XliL. one occasion reluctantly permitted an amendment of that nature to pass, took care to record their dissent from the principle by a special entry in the journal.l An amendment having been introduced into a bill for regulating the press, sent up by the commons in the session of 1661, which exempted the houses of peers from search for unlicensed books, it was resolved not to agree to it; and the bill dropped for that time.2 Even in far more urgent circumstances, while the parliament sat at Oxford in the year of the plague, a bill to prevent the progress of infection was lost, because the lords insisted that their houses should not be subjected to the general provisions for security.8

These ill-judged demonstrations of a design to exempt themselves from that equal submission to the law which is required in all wellgoverned states, and had ever been remarkable in our constitution, naturally raised a prejudice against the lords, both in the other house of parliament and among the common lawyers. This half-suppressed jealousy soon disclosed itself in the famous controversy between the two houses about about their the case of Skinner and the East India company. riginalju-This began by a petition of the former to the o king, wherein he complained, that, having gone as a merchant to the Indian seas at a time when there was no restriction upon that trade, the East India company’s agents had plundered his property, taken away his ships, and dispossessed him of an island which he had purchased from a native prince. Conceiving that he could have no sufficient redress in the ordinary courts of justice, he besought his sovereign to enforce reparation by some other means. After several ineffectual attempts by a committee of the privy council to bring about a compromise between the parties, the king transmitted the documents to the house of lords, with a recommendation to do justice to the petitioner.

They proceeded accordingly to call on the East India company for an answer to Skinner’s allegations. The company gave in what is technically called a plea to the jurisdiction, which the house overruled. The defendants then pleaded in bar, and contrived to delay the inquiry into the facts till the next session, when, the proceedings having been renewed, and the 1

Journals, Aug. 2 and 15, 1660. 3 Id. Oct. 31, 1665. 2 Id. July 29, 1661

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CHA.. - Constitution. CASE OF SKINNER. 29 plea to the lords’ jurisdiction again offered and overruled, judgment was finally given that the East India company should pay 50001. damages to Skinner. Meantime the company had presented a petition to the house of commons against the proceedings of the and that in lords in this business. It was referred to a com-appeals from mittee who had already been appointed to consider courts of some other cases of a like nature. They made a equty report, which produced resolutions to this effect-that the lords, in taking cognizance of an original complaint, and that relievable in the ordinary course of law, had acted illegally, and in a manner to deprive the subject of the benefit of the law. The lords in return voted, “That the house of commons entertaining the scandalous petition of the East India company against the lords’ house of parliament, and their proceedings, examinations, and votes thereupon had and made, are a breach of the privileges of the house of peers, and contrary to the fair correspondency which ought to be between the two houses of parliament, and unexampled in former times; and that the house of peers, taking cognizance of the cause of Thomas Skinner, merchant, a person highly oppressed and injured in East India by the governor and company of merchants trading thither, and overruling the plea of the said company, and adjudging 50001. damages thereupon against the said governor and company, is agreeable to the laws of the land, and well warranted by the law and custom of parliament, and justified by many parliamentary precedents ancient and modern.” Two conferences between the houses, according to the usage of parliament, ensued, in order to reconcile this dispute. But it was too material in itself, and aggravated by two much previous jealousy, for any voluntary compromise. The precedents alleged to prove an original jurisdiction in the peers were so thinly scattered over the record of centuries, and so contrary to the received principle of our constitution that questions of fact are cognizable only by a jury, that their managers in the conferences seemed less to insist on the general right than on a supposed inability of the courts of law to give adequate redress to the present plaintiff; for which the judges had furnished some pretext, on a reference as to their own competence to afford relief, by an answer more narrow, no doubt, than would have been ren

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30 QUARREL OF LORDS AND COMMONS. CHAP. xm dered at the present day. And there was really more to be said, both in reason and law, for this limited right of judicature, than for the absolute cognizance of civil suits by the lords. But the commons were not inclined to allow even of such a special exception from the principle for which they contended, and intimated that the power of affording a remedy in a defect of the ordinary tribunals could only reside in the whole body of the parliament. The proceedings that followed were intemperate on both sides. The commons voted Skinner into custody for a breach of privilege, and resolved that whoever should be aiding in execution of the order of the lords against the East India company should be deemed a betrayer of the liberties of the commons of England, and an infringer of the privileges of the house. The lords, in return, committed sir Samuel Barnardiston, chairman of the company, and a member of the house of commons, to prison, and imposed on him a fine of 5001. It became necessary for the king to stop the course of this quarrel, which was done by successive adjournments and prorogations for fifteen months. But on their meeting again, in October 1669, the commons proceeded instantly to renew the dispute. It appeared that Barnardiston, on the day of the adjournment, had been released from custody without demand of his fine, which, by a trick rather unworthy of those who had resorted to it, was entered as paid on the records of the exchequer. This was a kind of victory on the side of the commons; but it was still more material that no steps had been taken to enforce the order of the lords against the East India company. The latter sent down a bill concerning privilege and judicature in parliament, which the other house rejected on a second reading. They in return passed a bill vacating the proceedings against Barnardiston, which met with a like fate. In conclusion, the king recommended an erasure from the Journals of all that had passed on the subject, and an entire cessation; an expedient which both houses willingly embraced, the one to secure its victory, the other to save its honor. From this time the lords have tacitly abandoned all pretensions to an original jurisdiction in civil suits.1 1 For the whole of this business, which and Hargrave’s Preface to Hale’s JurisIs erased from the journals of both houses, diction of the Lords, 101. [A slight atsee State Trials, v. 711; Parl. Hist. iv. tempt to revive the original jurisdiction 431, 443; Hatsell’s Precedents, iii. 336; was made by the lords in 1702. Id. 196.1

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CHA. II.- Constitution. SHIRLEY -SIR JOHN FAGG. 31 They have, however, been more successful in establishing a branch of their ultimate jurisdiction which had less to be urged for it in respect of precedent, that of hearing appeals from courts of equity. It is proved by sir Matthew Hale and his editor, Mr. Hargrave, that the lords did not entertain petitions of appeal before the reign of Charles I., and not perhaps unequivocally before the long parliament.1 They became very common from that time, though hardly more so than original suits; and, as they bore no analogy, except at first glance, to writs of error, which come to the house of lords by the king’s express commission under the great seal, could not well be defended on legal grounds. But, on the other hand, it was reasonable that the vast power of the court of chancery should be subject to some control; and though a commission of review, somewhat in the nature of the court of delegates in ecclesiastical appeals, might have been and had been occasionally ordered by the crown,2 yet, if the ultimate jurisdiction of the peerage were convenient and salutary in cases of common law, it was difficult to assign any satisfactory reason why it should be less so in those which are technically denominated equitable.3

Nor is it likely that the commons would have disputed this usurpation, in which the crown had acquiesced, if the lords had not received appeals against members of the other house. Three instances of this took place about the year 1675; but that of Shirley against sir John Fagg is the most celebrated, as having given rise to a conflict between the two houses as violent as that which had occurred in the business of Skinner. It began altogether on the score of privilege. As members of the house of commons were exempted from legal process during the session, by the general privilege of parliament, they justly resented the pretension of the peers to disregard this immunity, and compel them to appear as respondents in cases of appeal. In these contentions neither 1 Hale says, ” I could never get to any Mohun and Lincoln severally protested; precedent of greater antiquity than 3 the latter very sensibly observing, that, Car. I., nay, scarce before 16 Car. I., of whereas it hath been the prudence and any such proceeding in the lords’ house.” care of former parliaments to set limits C. 83; and see Hargrave’s Preface, 53. and bounds to the jurisdiction of chan2 Id. c. 31. eery, now this order of directions, which 3 It was ordered in a petition of Rob-implies a command, opens a gap to set up ert Roberts, esq., that directions be given an arbitrary power in the chancery, which to the lord chancellor that he proceed to is hereby countenanced by the house of make a speedy decree in the court of lords to act, not according to the accus. chancery, according to equity and jus-tomed rules or former precedents of that tice, notwithstanding there be not any court, but according to his own will precedent in the case.

Against this lords Lords’ Journals, 29th Nov. 1664.

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32 VOTE BY THE COMMONS. CHAP. XII. party could evince its superiority but at the expense of innocent persons. It was a contempt of the one house to disobey its order, of the other to obey it. Four counsel, who had pleaded at the bar of the lords in one of the cases where a member of the other house was concerned, were taken into custody of the sergeantat-arms by the speaker’s warrant. The gentleman usher of the black rod, by warrant of the lords, empowering him to call all persons necessary to his assistance, set them at liberty. The commons apprehended them again; and, to prevent another rescue, sent them to the Tower. The lords despatched their usher of the black rod to the lieutenant of the Tower, commanding him to deliver up the said persons. He replied that they were committed by order of the commons, and he could not release them without their order; just as, if the lords were to commit any person, he could not release him without their lordships’ order. They addressed the king to remove the lieutenant; but, after some hesitation, he declined to comply with their desire. In this difficulty they had recourse, instead of the warrant of the lords’

speaker, to a writ of habeas corpus returnable in parliament; a proceeding not usual, but the legality of which seems to be now admitted. The lieutenant of the Tower, who, rather unluckily for the lords, had taken the other side, either out of conviction or from a sense that the lower house were the stronger and more formidable, instead of obeying the writ, came to the bar of the commons for directions. They voted, as might be expected, that the writ was contrary to law and the privileges of their house. But, in this ferment of two jealous and exasperated assemblies, it was highly necessary, as on the former occasion, for the king to interpose by a prorogation for three months. This period, however, not being sufficient to allay their animosity, the house of peers took up again the appeal of Shirley in their next session. Fresh votes and orders of equal intemperance on both sides ensued, till the king by the long prorogation, from November 1675 to February 1677, put an end to the dispute. The particular appeal of Shirley was never revived; but the lords continued without objection to exercise their general jurisdiction over appeals from courts of equity.1 The learned editor of Hale’s Treatise on the 1 It was thrown out against them by in 1704, but not with any serious intenthe commons in their angry conferences tion of opposition. about the business of Ashby and White,

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CHA. II. - Constitution. MONEY-BILLS. 33 Jurisdiction of the Lords expresses some degree of surprise at the commons’ acquiescence in what they had treated as an usurpation. But it is evident from the whole course of proceeding that it was the breach of privilege in citing their own members to appear which excited their indignation. It was but incidentally that they observed in a conference ” that the commons cannot find by Magna Charta, or by any other law or ancient custom of parliament, that your lordships have any jurisdiction in cases of appeal from courts of equity.”

They afterwards, indeed, resolved that there lies no appeal to the judicature of the lords in parliament from courts of equity;1 and came ultimately, as their wrath increased, to a vote, ” That whosoever shall solicit, plead, or prosecute any appeal against any commoner of England, from any court of equity, before the house of lords, shall be deemed and taken a betrayer of the rights and liberties of the commons of England, and shall be proceeded against accordingly; ” 2 which vote the lords resolved next day to be ” illegal, unparliamentary, and tending to a dissolution of the government.” a But this was evidently rather an act of hostility arising out of the immediate quarrel than the calm assertion of a legal principle.4 During the interval between these two dissensions, which the suits of Skinner and Shirley engendered, an-Question of other difference had arisen, somewhat less violently the exclusive conducted, but wherein both houses considered right of the commons as their essential privileges at stake. This concerned to moneythe long-agitated question of the right of the lords bis to make alterations in money-bills. Though I cannot but think the importance of their exclusive privilege has been rather exaggerated by the house of commons, it deserves attention; more especially as the embers of that fire may 1 C. J., May 30. It may be observed that the lords 2 Id. Nov. 19. Several divisions took learned a little caution in this affair. An place in the course of this business, and appeal of one Cottington from the court some rather close; the court endeavor-of delegates to their house was rejected ing to allay the fire.

The vote to take by a vote that it did not properly belong sergeant Pemberton into custody for ap-to them, Shaftesbury alone dissentient.

pearing as counsel at the lords’ bar was June 17, 1678. Yet they had asserted only carried by 154 to 146 on June 1. their right to receive appeals from inferior 3 Lords’ Journals, Nov. 20. courts, that there might be no failure of 4 Lords’ and Commons’ Journals, May justice, in terms large enough to embrace and November, 1675; Parl. Hist. 721, the ecclesiastical jurisdiction. May 6, 791; State Trials vi. 1121; Hargrave’s 1675. And it is said that they actually Preface to Hale, 135; and Hale’s Trea-had done so in 1628. Hargrave, 53. tise, c. 33. VOL. III. 3

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34 MONEY-BILLS. CHAP. XTT. not be so wholly extinguished as never again to show some traces of its heat. In our earliest parliamentary records the lords and commons, summoned in a great measure for the sake ts history. of relieving the king’s necessities, appear to have made their several grants of supply without mutual communication, and the latter generally in a higher proportion than the former. These were not in the form of laws, nor did they obtain any formal assent from the king, to whom they were tendered in written indentures, entered afterwards on the roll of parliament. The latest instance of such distinct grants from the two houses, as far as I can judge from the rolls, is in the 18th year of Edward III.1 But in the 22d year of that reign the commons alone granted three fifteenths of their goods, in such a manner as to show beyond a doubt that the tax was to be levied solely upon themselves.2 After this time the lords and commons are jointly recited in the rolls to have granted them, sometimes, as it is expressed, upon deliberation had together. In one case it is said that the lords, with one assent, and afterwards the commons, granted a subsidy on exported wool.3 A change of language is observable in Richard II.‘s reign, when the commons are recited to grant with the assent of the lords; and this seems to indicate, not only that in practice the vote used to originate with the commons, but that their proportion, at least, of the tax being far greater than that of the lords (especially in the usual impositions on wool and skins, which ostensibly fell on the exporting merchant), the grant was to be deemed mainly theirs, subject only to the assent of the other house of parliament. This is, however, so explicitly asserted in a remarkable passage on the roll of 9 Hen. IV., without any apparent denial, that it cannot be called in question by any one.4 The language of the rolls continues to be the same in the following reigns; themmn the commons are the granting, the lords the consenting power. It is even said by the court of king’s bench, in a year-book of Edward IV., that a grant of money by the commons would be binding without assent of the lords; meaning of course as to commoners alone. I have been almost led to suspect, by considering this remarkable I Rot. Parl. ii. 148. 4 Rot. Parl. iii. 611.

View of Middle 2 Id. 200. Ages, ii. 310. 8 Id. 300 (43 Edw. ).

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CHA. II.- Constitution. MONEY-BILLS. 35 exclusive privilege of originating grants of money to the crown, as well as by the language of some passages in the rolls of parliament relating to them, that no part of the direct taxes, the tenths or fifteenths of goods, were assessed upon the lords temporal and spiritual, except where they are positively mentioned, which is frequently the case. But, as I do not remember to have seen this anywhere asserted by those who have turned their attention to the antiquities of our constitution, it may possibly be an unfounded surmise, or at least only applicable to the earlier period of our parliamentary records. These grants continued to be made as before, by the consent indeed of the houses of parliament, but not as legislative enactments.

Most of the few instances where they appear among the statutes are where some condition is annexed, or some relief of grievances so interwoven with them that they make part of a new law.1 In the reign of Henry VII. they are occasionally inserted among the statutes, though still without any enacting words.2 In that of Henry VIII. the form is rather more legislative, and they are said to be enacted by the authority of parliament, though the king’s name is not often mentioned till about the conclusion of his reign; 8 after which a sense of the necessity of expressing his legislative authority seems to have led to its introduction in some part or other of the bill.4 The lords and commons are sometimes both said to grant, but more frequently the latter with the former’s assent, as continued to be the case through the reigns of Elizabeth and James I. In the first 1 14 E. 3, stat. 1, c. 21. This statute propriation, which had escaped me, is remarkable for a promise of the lords though I have elsewhere quoted that in not to assent in future to any charge be-5

Rich. 2, stat. 2, c. 2 & 3. In two or yond the old custom, without assent of three instances we find grants of tenths the commons in full parliament. Stat. 2, and fifteenths in the statutes, without same year: the king promises to lay on any other matter, as 14 E. 3, stat. 1, c. 20; no charge but by assent of the lords and 27 E. 3, stat. 1, c. 4. commons.

18 E. 3, stat. 2, c. 1: the com-2 7 H. 7, c. 11; 12 H. 7, c. 12. mons grant two fifteenths of the com-3 I find only one exception, 5 H. 8, monalty, and two tenths of the cities and c. 17, which was in the now common boroughs. ” Et en cas que notre signeur form: Be it enacted by the king our sovle roi passe la mer, de paier a mesmes les ereign lord, and by the assent, &c. tems les quinzisme et disme del second 4 In 37 H. 8, c.

25, both lords and an, et nemy en autre maniere. Issint que commons are said to grant, and they pray les deniers de ce levez soient despendus, that their grant “may be ratified and en les besoignes a eux monstez a cest confirmed by his majesty’s royal assent, parlement, par avis des grauntz a ce as-so to be enacted and authorized by virtue signez, et que les aides de la Trent soient of this present parliament as in such mys en defense de north.” This is a re-cases heretofore has been accustomed.”

markable precedent for the usage of ap

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86 MONEY-BILLS. CHAP. XIII. parliament of Charles I. the commons began to omit the name of the lords in the preamble of bills of supply, reciting the grant as if wholly their own, but in the enacting words adopted the customary form of statutes. This, though once remonstrated against by the upper house, has continued ever since to be the practice. The originating power as to taxation was thus indubitably placed in the house of commons; nor did any controversy arise upon that ground. But they maintained also that the lords could not make any amendment whatever in bills sent up to them for imposing, directly or indirectly, a charge upon the people. There seems no proof that any difference between the two houses on this score had arisen before the Restoration; and in the convention parliament the lords made several alterations in undoubted money-bills, to which the commons did not object. But in 1661, the lords having sent down a bill for paving the streets of Westminster, to which they desired the concurrence of the commons, the latter, on reading the bill a first time, “observing that it went to lay a charge upon the people, and conceiving that it was a privilege inherent in their house that bills of that nature should be first considered there,” laid it aside, and caused another to be brought in.l When this was sent up to the lords, they inserted a clause to which the commons disagreed, as contrary to their privileges, because the people cannot have any tax or charge imposed upon them, but originally by the house of commons. The lords resolved this assertion of the commons to be against the inherent privileges of the house of peers; and mentioned one precedent of a similar bill in the reign of Mary, and two in that of Elizabeth, which had begun with them. The present bill was defeated by the unwillingness of either party to recede; but for a few years after, though the point in question was still agitated, instances occur where the commons suffered amendments in what were now considered as money-bills to pass, and others where the lords receded from them rather than defeat the proposed measure. In April 1671, however, the lords having reduced the amount of an imposition on sugar, it was resolved by the other house, “

That, in all aids given to the king by the commons, the rate or tax ought not to be altered by the lords.” 2 This brought 1 Commons’ Journals, 24, 29 July; sell’s Precedents, iii. 100, for this subject Lords’ Journals, 80

July. See also Hat-of supply. 2 They expressed this with strange

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CHA. II. - Constitution. MONEY-BILLS. 37 on several conferences between the houses, wherein the limits of the exclusive privilege claimed by the commons were discussed with considerable ability, and less heat than in the disputes concerning judicature; but, as I cannot help thinking, with a decided advantage both as to precedent and constitutional analogy on the side of the peers.1 If the commons, as in early times, had merely granted their own money, it would be reasonable that their house should have, as it claimed to have, “a fundamental right as to the matter, the measure, and the time.” But that the peers, subject to the same burdens as the rest of the community, and possessing no trifling proportion of the general wealth, should have no other alternative than to refuse the necessary supplies of the revenue, or to have their exact proportion, with all qualifications and circumstances attending their grant, presented to them unalterably by the other house of parliament, was an anomaly that could hardly rest on any other ground of defence than such a serie.s of precedents as establish a constitutional usage; while, in fact, it could not be made out that such a pretension was ever advanced by the commons before the present parliament. In the short parliament of April 1640, the lords having sent down a message, requesting the other house to give precedency, in the business they were about, to matter of supply, it had been highly resented as an infringement of their privilege; and Mr. Pym was appointed to represent their complaint at a conference. Yet even then, in the fervor of that critical period, the boldest advocate of popular privileges who could have been selected was content to assert that the matter of subsidy and supply ought to begin in the house of commons.2

There seems to be still less pretext for the great extension given by the commons to their acknowledged privilege of latitude in a resolution some years after, point of Impositions,” 1696, a vigorous that all aids and sapplies to his majesty and learned defence of the right of the in parliament are the sole gift of the corn-lords to make alterations in money-bills, mons. Parl. Hist. 1005. As they did it is admitted that they cannot increase not mean to deny that the lords must the rates; since that would be to originate concur in the bill, much less that they a charge on the people, which they can. must pay their quota, this language not do.

But it is even said in the yearseems indefensible. book, 33 H. 6, that, if the commons grant 1 Lords’ and Commons’ Journals, April tonnage for four years, and the lords 17th and 22d, 1679. Parl. Hist. iv. reduce the terms to two years, they need 480. Hatsell’s Precedents, iii. 109, 368, not send the bill down again. This of 409. course could not be supported in modern In a pamphlet by Lord Anglesea, if I times. mistake not, entitled ” Case stated of the 2 Parl. Hist. ii. 563. Jurisdiction of the House of Lords in

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38 EXTENSION OF RIGHT. CHAP. XIII. originating bills of supply. The principle was well adapted The right to that earlier period when security against misgovextended ernment could only be obtained by the vigilant further. jealousy and uncompromising firmness of the commons. They came to the grant of subsidy with real or feigned reluctance, as the stipulated price of redress of grievances. They considered the lords, generally speaking, as too intimately united with the king’s ordinary council, which indeed sat with them, and had, perhaps as late as Edward III.‘s time, a deliberative voice. They knew the influence or intimidating ascendency of the peers over many of their own members. It may be doubted in fact whether the lower house shook off, absolutely and permanently, all sense of subordination, or at least deference, to the upper, till about the close of the reign of Elizabeth. But I must confess that, when the wise and ancient maxim, that the commons alone can empower the king to levy the people’s money, was applied to a private bill for lighting and cleansing a certain town, or cutting dikes in a fen, to local and limited assessments for local benefit (as to which the crown has no manner of interest, nor has anything to do with the collection), there was more disposition shown to make encroachments than to guard against those of others. They began soon after the Revolution to introduce a still more extraordinary construction of their privilege, not receiving from the house of lords any bill which imposes a pecuniary penalty on offenders, nor permitting them to alter the application of such as had been imposed below.1 These restrictions upon the other house of parliament, however, are now become, in their own estimation, the standing privileges of the commons. Several instances have occurred during the last century, though not, I believe, very lately, when bills, chiefly of a private nature, have been unanimously 1 The principles laid down by Hatsell penalties in a bill, or alter those inserted are: 1. That in bills of supply the lords by the commons. iii. 137. lIe seems to can make no alteration but to correct boast that the lords during the last cenverbal mistakes. 2. That in bills, not of tury have very faintly opposed the claim absolute supply, yet imposing burdens, of the commons. But surely they have as turnpike acts, &c., the lords cannot sometimes done so in practice by returnalter the quantum of the toll, the persons ing a money-bill, or what the lower to manage it, &c.; but in other clauses house call one, amended; and the comthey may make amendments. 3. That mons have had recourse to the evasion of where a charge may indirectly be thrown throwing out such bill, and bringing in on the people by a bill, the commons another with the amendments inserted object to the lords making amendments. in it, which does not look very trium4. That the lords cannot insert pecuniary phant.

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CHA. II. - Constitution. NUMBER OF TEMPORAL LORDS. 39 rejected, and even thrown over the table by the speaker, because they contained some provision in which the lords had trespassed upon these alleged rights.1

They are, as may be supposed, very differently regarded in the neighboring chamber. The lords have never acknowledged any further privilege than that of originating bills of supply. But the good sense of both parties, and of an enlightened nation, who must witness and judge of their disputes, as well as the natural desire of the government to prevent in the outset any altercation that must impede the course of its measures, have rendered this little jealousy unproductive of those animosities which it seemed so happily contrived to excite. The one house, without admitting the alleged privilege, has generally been cautious not to give a pretext for eagerly asserting it; and the other, on the trifling occasions where it has seemed, perhaps unintentionally, to be infringed, has commonly resorted to the moderate course of passing a fresh bill to the same effect, after satisfying its dignity by rejecting the first. It may not be improper to choose the present occasion for a summary view of the constitution of both houses State of the of parliament under the lines of Tudor and Stuart.

upper house under the Of their earlier history the reader may find a brief Tudors and and not, I believe, very incorrect account, in a work stuarts.

to which this is a kind of sequel. The number of temporal lords summoned by writ to the parliaments of the house of Plantagenet was ex-Augmen..) Augmentaceedingly various; nor was anything more com-tion of the mon in the fourteenth century than to omit those temporal who had previously sat in person, and still more their descendants. They were rather less numerous, for this reason, under the line of Lancaster, when the practice of summoning those who were not hereditary peers did not so much prevail as in the preceding reigns. Fifty-three names, however, appear in the parliament of 1454, the last held before the commencement of the great contest between York and Lancaster. In this troublous period of above thirty years, if the whole reign of Edward IV. is to be included, the chiefs of many powerful families lost their lives in the field or on 1 The last instance mentioned by Hat-landowners to the occupiers: iii. 131. I sell is in 1790, when the lords had amend-am not at present aware of any subseed a bill for regulating Warwick jail by quent case, but rather suspect that such changing the rate to be imposed from the might be found.

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40 STATE OF THE UPPER HOUSE CHAP. XHI. the scaffold, and their honors perished with them by attainder. New families, adherents of the victorious party, rose in their place; and sometimes an attainder was reversed by favor; so that the peers of Edward’s reign were not much fewer than the number I have mentioned. Henry VII. summoned but twenty-nine to his first parliament, including some whose attainder had never been judicially reversed; a plain act of violence, like his previous usurpation of the crown. In his subsequent parliaments the peerage was increased by fresh creations, but never much exceeded forty. The greatest number summoned by Henry VIII. was fifty-one; which continued to be nearly the average in the two next reigns, and was very little augmented by Elizabeth. James, in his thoughtless profusion of favor, made so many new creations, that eighty-two peers sat in his first parliament, and ninetysix in his latest.

From a similar facility in granting so cheap a reward of service, and in some measure perhaps from the policy of counteracting a spirit of opposition to the court, which many of the lords had begun to manifest, Charles called no less than one hundred and seventeen peers to the parliament of 1628, and one hundred and nineteen to that of November, 1640. Many of these honors were sold by both these princes; a disgraceful and dangerous practice, unheard of in earlier times, by which the princely peerage of England might have been gradually levelled with the herd of foreign nobility. This has, occasionally, though rarely, been suspected since the Restoration. In the parliament of 1661 we find one hundred and thirty-nine lords summoned. The spiritual lords, who, though forming another estate in parliament, have always been so united with the temporality that the suffrages of both upon every question are told indistinctly and numerically, composed in general, before the Reformation, a majority of the upper house; though there was far more irregularity in the summonses of the mitred abbots and priors than those of the barons.

But by the surrender and dissolution of the monasteries, about thirty-six votes of the clergy on an average were withdrawn from the parliament; a loss ill compensated to them by the creation of five new bishoprics. Thus, the number of the temporal peers being continually augmented, while that of the prelates was confined to twenty-six, the direct influence of the church on the legislature has become comparatively small; and that of

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CIA. II. -Constitution. UNDER TUDORS AND STUARTS. 41 the crown, which, by the pernicious system of translations and other means, is generally powerful with the episcopal bench, has, in this respect at least, undergone some diminution. It is easy to perceive from this view of the case that the destruction of the monasteries, as they then stood, was looked upon as an indispensable preliminary to the Reformation; no peaceable efforts towards which could have been effectual without altering the relative proportions of the spiritual and temporal aristocracy. The house of lords, during this period of the sixteenth and seventeenth centuries, were not supine in rendering their collective and individual rights independent of the crown. It became a fundamental principle, according indeed to ancient authority, though not strictly observed in ruder times, that every peer of full age is entitled to his writ of summons at the beginning of a parliament, and that the house will not proceed on business if any one is denied it.1 The privilege of voting by proxy, which was originally by special permission of the king, became absolute, though subject to such limitations as the house itself may impose. The writ of summons, which, as I have observed, had in earlier ages (if usage is to determine that which can rest on nothing but usage) given only a right of sitting in the parliament for which it issued, was held, about the end of Elizabeth’s reign, by a construction founded on later usage, to convey an inheritable peerage, which was afterwards adjudged to descend upon heirs general, female as well as male; an extension which sometimes raises intricate questions of descent, and, though no materially bad consequences have flowed from it, is perhaps one of the blemishes in the constitution of parliament. Doubts whether a peerage could be surrendered to the king, and whether a territorial honor, of which hardly any remain, could be alienated along with the land on which it depended, were determined in the manner most favorable to the dignity of the aristocracy. They obtained also an important privilege; first of recording their dissent in the journals of the house, and afterwards of inserting the grounds of 1 See the case of the earl of Arundel sparing of writs of this nature for the in parliament of 1626. Ir-one instance future. 20th Oct. 1667. The king made the house took notice that a writ of sum-an excuse that he did not know the earl mons had been issued to the earl of Mul-was much under age and would be care grave, he being under age, and addressed ful for the future. 29th Oct. the king that he would be pleased to be

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42 STATE OF THE COMMONS. CHAP. XI1L it. Instances of the former occur not unfrequently at the period of the Reformation: but the latter practice was little known before the long parliament. A right that Cato or Phocion would have prized, though it may sometimes have been frivolously or factiously exercised! The house of commons, from the earliest records of its regState of the ular existence in the 23d year of Edward I., concommons. sisted of seventy-four knights, or representatives from all the counties of England, except Chester, Durham, and Monmouth, and of a varying number of deputies from the cities and boroughs; sometimes, in the earliest period of representation, amounting to as many as two hundred and sixty; sometimes, by the negligence or partiality of the sheriffs in omitting places that had formerly returned memincrease of bers, to not more than two thirds of that number. their mem-New boroughs, however, as being grown into bers. importance, or from some private motive, acquired the franchise of election; and at the accession of Henry VIII. we find two hundred and twenty-four citizens and burgesses from one hundred and eleven towns (London sending four), none of which have since intermitted their privilege. I must so far concur with those whose general principles Question aas to the theory of parliamentary reform leave to rights of me far behind, as to profess my opinion that the election. change which appears to have taken place in the English government towards the end of the thirteenth century was founded upon the maxim that all who possessed landed or movable property ought, as freemen, to be bound by no laws, and especially by no taxation, to which they had not consented through their representatives. If we look at the constituents of a house of commons under Edward I. or Edward III., and consider the state of landed tenures and of commerce at that period, we shall perceive that, excepting women, who have generally been supposed capable of no political right but that of reigning, almost every one who contributed towards the tenths and fifteenths granted by the parliament might have exercised the franchise of voting for those who sat in it. Were we even to admit that in corporate boroughs the franchise may have been usually vested in the freemen rather than the inhabitants, yet this distinction, so important in later ages, was of little consequence at a time when all traders, that is, all who possessed any movable

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CHA. II. - Constitution. RIGHTS OF ELECTION. 43 property worth assessing, belonged to the former class. I do not pretend that no one was contributory to a subsidy who did not possess a vote, but that the far greater portion was levied on those who, as freeholders or burgesses, were reckoned in law to have been consenting to its imposition. It would be difficult probably to name any town of the least consideration in the fourteenth and fifteenth centuries which did not, at some time or other, return members to parliament. This is so much the case that if, in running our eyes along the map, we find any seaport, as Sunderland or Falmouth, or any inland town, as Leeds or Birmingham, which has never enjoyed the elective franchise, we may conclude at once that it has emerged from obscurity since the reign of Henry VIII.1 Though scarce any considerable town, probably, was intentionally left out, except by the sheriffs’

partiality, it is not to be supposed that all boroughs that made returns were considerable. Several that are currently said to be decayed were never much better than at present. Some of these were the ancient demesne of the crown; the tenants of which, not being suitors to the county courts, nor voting in the election of knights for the shire, were, still on the same principle of consent to public burdens, called upon to send their own representatives. Others received the privilege along with their charter of incorporation, in the hope that they would thrive more than proved to be the event; and possibly, even in such early times, the idea of obtaining influence in the commons through the votes of their burgesses might sometimes suggest itself. That, amidst all this care to secure the positive right of representation, so little provision should have been made as to its relative efficiency, that the high-born and opulent gentry should have been so vastly outnumbered by peddling traders, that the same number of two should have been deemed sufficient for the counties of York and Rutland, for Bristol and Gatton, are facts more easy to wonder at than to explain; for though the total ignorance of the government as to the relative population might be perhaps a sufficient reason for not making an attempt at equalization, yet, if the representation I Though the proposition in the text is, in the northern parts of England; and I believe, generally true, it has occurred that both Sheffield and Manchester are to me since that there are some exceptions among them.

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44 INCREASE OF MEMBERS OF CHAP. XIII. had been founded on anything like a numerical principle, there would have been no difficulty in reducing it to the proportion furnished by the books of subsidy for each county and borough, or at least in a rude approximation towards a more rational distribution. Henry VIII. gave a remarkable proof that no part of the kingdom, subject to the English laws and parliamentary burdens, ought to want its representation, by extending the right of election to the whole of Wales, the counties of Chester and Monmouth, and even the towns of Berwick and Calais. It might be possible to trace the reason why the county of Durham was passed over. The attachment of those northern parts to popery seems as likely as any other. Thirty-three were thus added to the commons. Edward VI. created fourteen boroughs, and restored ten that had disused their privilege. Mary added twenty-one, Elizabeth sixty, and James twenty-seven members. These accessions to the popular chamber of parliament after the reign of Henry VIII. were by no means derived from a popular principle, such as had influenced its earlier constitution. We may account perhaps on this ground for the writs addressed to a very few towns, such as Westminster. But the design of that great influx of new members from petty boroughs, which began in the short reigns of Edward and Mary, and continued under Elizabeth, must have been to secure the authority of government, especially in the successive revolutions of religion. Five towns only in Cornwall made returns at the accession of Edward VI.; twenty-one at the death of Elizabeth. It will not be pretended that the wretched villages, which corruption and perjury still hardly keep from famine, were seats of commerce and industry in the sixteenth century.

But the county of Cornwall was more immediately subject to a coercive influence, through the indefinite and oppressive jurisdiction of the stannary court. Similar motives, if we could discover the secrets of those governments, doubtless operated in most other cases. A slight difficulty seems to have been raised in 1563 about the introduction of representatives from eight new boroughs at once by charters from the crown, but was soon waived with the complaisance usual in those times.

Many of the towns which had abandoned their privilege at a time when they were compelled to the payment of daily wages to their

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CHA. II.- Constitution. THE COMMONS’ HOUSE. 45 members during the session, were now desirous of recovering it when that burden had ceased and the franchise had become valuable. And the house, out of favor to popular rights, laid it down in the reign of James I. as a principle, that every town which has at any time returned members to parliament is entitled to a writ as a matter of course. The speaker accordingly issued writs to Hertford, Pomfret, I1chester, and some other places, on their petition.

The restorations of boroughs in this manner, down to 1641, are fifteen in number. But though the doctrine that an elective right cannot be lost by disuse is still current in parliament, none of the very numerous boroughs which have ceased to enjoy that franchise since the days of the three first Edwards have from the Restoration downwards made any attempt at retrieving it; nor is it by any means likely that they would be successful in the application. Charles I., whose temper inspired him rather with a systematic abhorrence of parliaments than with any notion of managing them by influence, created no new boroughs. The right indeed would certainly have been disputed, however frequently exercised. In 1673 the county and city of Durham, which had strangely been unrepresented to so late an era, were raised by act of parliament to the privileges of their fellow-subjects.1 About the same time a charter was granted to the town of Newark, enabling it to return two burgesses. It passed with some little objection at the time; but four years afterwards, after two debates, it was carried on the question, by 125 to 73, that, by virtue of the charter granted to the town of Newark, it hath right to send burgesses to serve in parliament.2 Notwithstanding this apparent recognition of the king’s prerogative to summon burgesses from a town not previously represented, no later instance of its exercise has occurred; and it would unquestionably have been resisted by the commons, not, as is vulgarly supposed, because the act of union with Scotland has limited the English members to 513

(which is not the case), but upon the broad maxims of exclusive privilege in matters relating to their own body, which the house was become powerful enough to assert against the crown. It is doubtless a problem of no inconsiderable difficulty to 1 25 Car. 2 c. 9. A bill had passed the 2

Journals, 26th Feb. and 20th March, commons in 1624 for the same effect, but 1676-7. tiled through the dissolution.

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46 ORIGINAL RIGHT OF THE CHAP. XIII. determine with perfect exactness by what class of persons the elective franchise in ancient boroughs was originally posFour differ-sessed; yet not perhaps so much so as the careent theories lessness of some, and the artifices of others, have original caused it to appear. The different opinions on principle. this controverted question may be reduced to the four following theses: - 1.

The original right, as enjoyed by boroughs represented in the parliaments of Edward I., and all of later creation, where one of a different nature has not been expressed in the charter from which they derive the privilege, was in the inhabitant householders resident in the borough, and paying scot and lot; under those words including local rates, and probably general taxes. 2. The right sprang from the tenure of certain freehold lands or burgages within the borough, and did not belong to any but such tenants. 3. It was derived from charters of incorporation, and belonged to the community or freemen of the corporate body. 4. It did not extend to the generality of freemen, but was limited to the governing part or municipal magistracy. The actual right of election, as fixed by determinations of the house of commons before 1772, and by committees under the Grenville Act since, is variously grounded upon some of these four principal rules, each of which has been subject to subordinate modifications which produce still more complication and irregularity. Of these propositions the first was laid down by a celeTheirprob-brated committee of the house of commons in ability con-1624, the chairman whereof was sergeant Glanville, and the members, as appears by the list in the Journals, the most eminent men, in respect of legal and constitutional knowledge, that were ever united in such a body. It is called by them the common-law right, and that which ought always to obtain where prescriptive usage to the contrary cannot be shown. But it has met with very little favor from the house of commons since the Restoration. The second has the authority of lord Holt in the case of Ashby and White, and of some other lawyers who have turned their attention to the subject. It countenances what is called the right of burgage tenure; the electors in boroughs of this description being such as hold burgages or ancient tenements within the borough. The next theory, which attaches the primary franchise to the freemen of corpora

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CHA. II.-Constitution. ELECTIVE FRANCHISE. 47 tions, has on the whole been most received in modern times, if we look either at the decisions of the proper tribunal, or the current doctrine of lawyers. The last proposition is that of Dr. Brady, who, in a treatise of boroughs, written to serve the purposes of James II., though not published till after the Revolution, endeavored to settle all elective rights on the narrowest and least popular basis. This work gained some credit, which its perspicuity and acuteness would deserve, if these were not disgraced by a perverse sophistry and suppression of truth. It does not appear at all probable that such varying and indefinite usages as we find in our present representation of boroughs could have begun simultaneously, when they were first called to parliament by Edward I. and his two next descendants.

There would have been what may be fairly called a common-law right, even were we to admit that some variation from it may, at the very commencement, have occurred in particular places. The earliest writ of summons directed the sheriff to make a return from every borough within his jurisdiction, without any limitation to such as had obtained charters, or any rule as to the electoral body. Charters, in fact, incorporating towns seem to have been by no means common in the thirteenth and fourteenth centuries; and though they grew more frequent afterwards, yet the first that gave expressly a right of returning members to parliament was that of Wenlock, under Edward IV. These charters, it has been contended, were incorporations of the inhabitants, and gave no power either to exclude any of them, or to admit non-resident strangers, according to the practice of later ages. But, however this may be, it is highly probable that the word burgess (burgensis), long before the elective franchise or the character of a corporation existed, meant literally the free inhabitant householder of a borough, a member of its court-leet, and subject to its jurisdiction. We may, I believe, reject with confidence what I have reckoned as the third proposition; namely, that the elective franchise belonged, as of common right, to the freemen of corporations; and still more that of Brady, which few would be found to support at the present day. There can, I should conceive, be little pretence for affecting to doubt that the burgesses of Domesday-book, of the various early records cited by Madox and others, and of the

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48 ORIGINAL RIGHT OF THE CHAP. XIII. writs of summons to Edward’s parliament, were inhabitants of tenements within the borough. But it may remain to be proved that any were entitled to the privileges or rank of burgesses who held less than an estate of freehold in their possessions.

The burgage tenure, of which we read in Littleton, was evidently freehold; and it might be doubtful whether the lessees of dwellings for a term of years, whose interest, in contemplation of law, is far inferior to a freehold, were looked upon as sufficiently domiciled within the borough to obtain the appellation of burgesses. It appears from Domesday that the burgesses, long before any incorporation, held lands in common belonging to their town; they had also their guild or market-house, and were entitled in some places to tolls and customs. These permanent rights seem naturally restrained to those who possessed an absolute property in the soil. There can surely be no question as to mere tenants at will, liable to be removed from their occupation at the pleasure of the lord; and it is perhaps unnecessary to mention that the tenancy from year to year, so usual at present, is of very recent introduction. As to estates for a term of years, even of considerable duration, they were probably not uncommon in the time of Edward I.; yet far outnumbered, as I should conceive, by those of a freehold nature. Whether these lessees were contributory to the ancient local burdens of scot and lot, as well as to the tallages exacted by the king, and tenths afterwards imposed by parliament in respect of movable estate, it seems not easy to determine; but if they were so, as appears more probable, it was not only consonant to the principle that no freeman should be liable to taxation without the consent of his representatives, to give them a share in the general privilege of the borough, but it may be inferred with sufficient evidence from several records that the privilege and the burden were absolutely commensurate; men having been specially discharged from contributing to tallages because they did not participate in the liberties of the borough, and others being expressly declared subject to those impositions as the condition of their being admitted to the rights of burgesses.1 It might however be conjectured that a difference of usage between those boroughs where the ancient exclusive 1 Madox Firma, Burgi, p. 270, et post

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CAP. IL - Constitution. ELECTIVE FRANCHISE. 49 rights of burgage tenants were maintained, and those where the equitable claim of taxable inhabitants possessing only a chattel interest received attention, might ultimately produce those very opposite species of franchise which we find in the scot and lot borough, and in those of burgage-tenure. If the franchise, as we now denominate it, passed in the thirteenth century for a burden, subjecting the elector to bear his part in the payment of wages to the representative, the above conjecture will be equally applicable, by changing the words right and claim into liability.1 It was according to the natural course of things that the mayors or bailiffs, as returning officers, with some of the principal burgesses (especially where incorporating charters had given them a preeminence), would take to themselves the advantage of serving a courtier or neighboring gentleman, by returning him to parliament, and virtually exclude the general class of electors, indifferent to public matters, and without a suspicion that their individual suffrages could ever be worth purchase. It is certain that a seat in the commons was an object of ambition in the time of Edward IV., and I have little doubt that it was so in many instances much sooner.

But there existed not the means of that splendid corruption which has emulated the Crassi and Luculli of Rome. Even so late as 1571, Thomas Long, a member for Westbury, confessed that he had given four pounds to the mayor and another person for his return. The elections were thus generally managed, not often perhaps by absolute bribery, but through the influence of the government and of the neigh 1 The popular character of the elective dom. Who then elected the members of franchise in early times has been main-boroughs not incorporated? Plainly, the tained by two writers of considerable inhabitants or burghers [according to research and ability; Mr. Luders, Re-their tenure or situation]; for at that ports of Election Cases, and Mr. Mere-time every inhabitant of a borough was wether, in his Sketch of the History of called a burgess; and Hobart refers to Boroughs and Report of the West Looe this usage in support of his opinion in Case. The former writer has the follow-the case of Dungannon. The manner in ing observations, vol. i. p. 99:-” The which they exercised this right was the ancient history of boroughs does not con-same as that in which the inhabitants of firm the opinion above referred to, which a town, at this day, hold a right of comlord chief-justice Holt delivered in the mon, or other such privilege, which many case of Ashby v.

White: viz. that in-possess who are not incorporated.” The habitants not incorporated cannot send words in brackets, which are not in the members to parliament but by prescrip-printed edition, are inserted by the’author tion. For there is good reason to believe himself in a copy bequeathed to the Inthat the elections in boroughs were in the ner Temple library. The remainder of beginning of representation popular; yet Mr. Luders’s note, though too long for in the reign of Edward I. there were not this place, is very good, and successfully perhaps thirty corporations in the king-repels the corporate theory. VOL. III. 4

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50 ELECTORAL FRANCHISE NARROWED CHAP. XIII boring aristocracy; and while the freemen of the corporation, or resident householders, were frequently permitted, for the sake of form, to concur in the election, there were many places where the smaller part of the municipal body, by whatever names distinguished, acquired a sort of prescriptive right through an usage, of which it was too late to show the commencement.1 It was perceived, however, by the assertors of the popular cause under James I., that, by this narrowing of the electoral franchise, many boroughs were subjected to the influence of the privy council, which, by restoring the householders to their legitimate rights, would strengthen the interests of the country. Hence lord Coke lays it down in his Fourth Institute, that, “if the king newly incorporate an ancient borough which before sent burgesses to parliament, and granteth that certain selected burgesses shall make election of the burgesses of parliament, where all the burgesses elected before, this charter taketh not away the election of the other burgesses. And so, if a city or borough hath power to make ordinances, they cannot make an ordinance that a less number shall elect burgesses for the parliament than I The following passage from Vowell’s election by the freeholders at large, that treatise on the order of the parliament, we may fairly put a literal construction published in 1571, and reprinted in Hol-upon the former. In point of fact, I have lingshed’s Chronicles of Ireland (vi. 345), little doubt that elections in boroughs seems to indicate that, at least in practice, were for the most part very closely manthe election was in the principal or gov-aged in the sixteenth century, and proberning body of the corporation. “The ably much earlier.

This, however, will sheriff of every county, having received not by any means decide the question of his writ, ought forthwith to send his pre-right. For we know that in the reigns cepts and summons to the mayors, bailiffs, of Henry IV. and Henry V. returns for and head officers of every city, town cor-the great county of York were made by porate, borough, and such places as have the proxies of a few peers and a few been accustomed to send burgesses within knights; and there is a still more anohis county, that they do choose and elect malous case in the reign of Elizabeth, among themselves two citizens for every when a lady Packington sealed the incity, and two burgesses for every borough, denture for the county of Worcester. according to their old custom and usage. Carew’s Iist. of Elections, part ii. p. 282. And these head officers ought then to as-But no one would pretend that the right semble themselves, and the aldermen and of election was in these persons, or supcommon council of every city or town: posed by any human being to be so. and to make choice among themselves of The difficulty to be got over by those two able and sufficient men of every city who defend the modern decisions of comor town, to serve for and in the said par-mittees is this. We know that in the liament.” reign of Edward I. more than one hunNow, if these expressions are accurate, dred boroughs made returns to the writ. it certainly seems that at this period the If most of these were not incorporated, great body of freemen or inhabitants were nor had any aldermen, capital burgesses, not partakers in the exercise of their and so forth, by whom were the elections franchise. And the following passage, if made? Surely by the freeholders, or by the reader will turn to it, wherein Vowell the inhabitants. And if they were se adverts to the form of a county election, made in the reign of Edward I., how haa is so differently worded in respect to the the franchise been restrained afterwards?

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CGA. II.- Constitution. BY MUNICIPAL BODIES. 51 made the election before; for free elections of members of the high court of parliament are pro bono publico, and not to be compared to other cases of election of mayors, bailiffs, &c., of corporations.“1 He adds, however, “by original grant or by custom, a selected number of burgesses may elect and bind the residue.”

This restriction was admitted by the committee over which Glanville presided in 1624.2 But both they and lord Coke believed the representation of boroughs to be from a date before what is called legal memory, that is, the accession of Richard I. It is not easy to reconcile their principle, that an elective right once subsisting could not be limited by anything short of immemorial prescription, with some of their own determinations, and still less with those which have subsequently occurred, in favor of a restrained right of suffrage. There seems, on the whole, great reason to be of opinion that, where a borough is so ancient as to have sent members to parliament before any charter of incorporation proved or reasonably presumed to have been granted, or where the word burgensis is used without anything to restrain its meaning in an ancient charter, the right of election ought to have been acknowledged either in the resident householders paying general and local taxes, or in such of them as possessed an estate of freehold within the borough. And whatever may have been the primary meaning of the word burgess, it appears consonant to the popular spirit of the English constitution that, after the possessors of leasehold interest became so numerous and opulent as to bear a very large share in the public burdens, they should have enjoyed commensurate privileges; and that the resolution of Mr. Glanville’s committee in favor of what they called the common-law right should have been far more uniflrmly received, and more consistently acted upon, not merely as agreeable to modern theories of liberty, from which some have intimated it to have sprung, but as grounded on the primitive spirit and intention of the law of parliament. In the reign of Charles II. the house of commons seems to have become less favorable to this species of franchise 14 Inst.

48. Glanville, p. 63, 66. That election, is laid down in the same book no private agreement or by-law of the p. 17. borough can restrain the right of 2 Glanville’s case of Bletchingly, p. 33

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52 CONTRARY DECISIONS ON THE CHAP. XIII. But after the Revolution, when the struggle of parties was renewed every three years throughout the kingdom, the right of election came more continually into question, and was treated with the grossest partiality by the house, as subordinate to the main interests of the rival factions. Contrary determinations for the sole purpose of serving these interests, as each grew in its turn more powerful, frequently occurred; and at this time the ancient right of resident householders seems to have grown into disrepute, and given way to that of corporations, sometimes at large, sometimes only in a limited and very small number.1 A slight check was imposed on this scandalous and systematic injustice by the act 2 G. II., c. 2, which renders the last determination of the house of commons conclusive as to the right of election.2 But this enactment confirmed many decisions that cannot be reconciled with any sensible rule. The same iniquity continued to prevail in cases beyond its pale; the fall of sir Robert Walpole from power was reckoned to be settled when there appeared a small majority against him on the right of election at Chippenham, a question not very logically connected with the merits of his administration; and the house would to this day have gone on trampling on the franchises of their constituents, if a statute had not been passed through the authority and eloquence of Mr. Grenville, which has justly been known by his name. I shall not enumerate the particular provisions of this excellent law, which, in point of time, does not fall within the period of my present work; it is generally acknowledged that, by 1 [I incline to suspect that it would be to have supported it, as far as we can found on research that, in a plurality of judge by the tellers. Id. March 30.instances, the tories favored the right of 1845.] residents, either householders or burgage 2

This clause, in an act imposing severe tenants, to the exclusion of freemen, who, penalties on bribery, was inserted by the being in a great measure outvoters, house of lords with the insidious design Were less likely to be influenced by the of causing the rejection of the whole bill; neighboring gentry. In 1694 a bill was if the commons, as might be expected, orought in to disfranchise the borough should resent such an interference with of Stockbridge for bribery. But the bur-their privileges. The ministry accordgesses petitioned against it, declaring ingly endeavored to excite this sentiment; themselves resolved for the future, in all but those who had introduced the bill difficult cases, to consult the gentlemen very wisely thought it better to sacrifice of the county. Journals, 7th Feb. They a point of dignity rather than lose so imby no means kept their word in the next portaut a statute. It was, however, only century; no place having been more no-carried by two voices to agree with the toriously venal. The bill was thrown out amendment.

Parl. Hist. viii. 754.,y a small majority; but the whigs seem

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CHA. II.- Constitution. RIGHT OF ELECTION. 53 transferring the judicature, in all cases of controverted elections, from the house to a sworn committee of fifteen members, the reproach of partiality has been a good deal lightened, though not perhaps effaced.1 1 These pages were first published in cient rights of election in boroughs a 1827. The Reform Bill of 1832 has of matter of merely historical interest. course rendered a disquisition Or the an

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54 REGARD FOR ANCIELYT FOIMS C. C XIV. CHAPTER XIV. THE REIGN OF JAMES II Designs of the King-Parliament of 1685-King’s Intention to repeal the Test Act-Deceived as to the Dispositions of his subjects-Prorogation of Parliament -Dispensing Power confirmed by the Judges - Ecclesiastical Commission - King’s Scheme of establishing Popery-Dismissal of Lord Rochester-Prince of Orange alarmed-Plan of setting the Princess aside-Rejected by the KingOvertures of the Malecontents to Prince of Orange Declaration for Liberty of Conscience -Addresses in favor of it-New Modelling of the Corporations-Affair of Magdalen College-Infatuation of the King-His Coldness towards LouisInvitation signed to the Prince of Orange - Birth of Prince of Wales - Justice and Necessity of the Revolution-Favorable Circumstances attending it-Its Salutary Consequences-Proceedings of the Convention -Ended by the Elevation of William and Mary to the Throne. THE great question that has been brought forward at the end of the last chapter, concerning the right and usage of election in boroughs, was perhaps of less practical importance in the reign of Charles II. than we might at first imagine, or than it might become in the present age. Whoever might be the legal electors, it is undoubted that a great preponderance was virtually lodged in the select body of corporations. It was the knowledge of this that produced the corporation act soon after the Restoration, to exclude the presbyterians, and the more violent measures of quo warranto at the end of Charles’s reign. If by placing creatures of the court in municipal offices, or by intimidating the former corporators through apprehensions of forfeiting their common property and lucrative privileges, what was called a loyal parliament could be procured, the business of government, both as to supply and enactment or repeal of laws, would be carried on far more smoothly and with less scandal than by their entire disuse. Few of those who assumed the name of tories were prepared to sacrifice the ancient fundamental forms of the constitution. They thought it equally necessary that a parliament should exist, and that it should have no will of its own, or none, at least, except for the preservation of that ascendency of the established religion which even their loyalty would not consent to surrender.

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JAMES II. DESIGNS OF THE KING. 55 It is not easy to determine whether James II. had resolved to complete his schemes of arbitrary government Designs of by setting aside even the nominal concurrence of the king. the two houses of parliament in legislative enactments, and especially in levying money on his subjects. Lord Halifax had given him much offence towards the close of the late reign, and was considered from thenceforth as a man unfit to be employed, because in the cabinet, on a question whether the people of New England should be ruled in future by an assembly or by the absolute pleasure of the crown, he had spoken very freely against unlimited monarchy.1 James, indeed, could hardly avoid perceiving that the constant acquiescence of an English house of commons in the measures proposed to it, a respectful abstinence from all intermeddling with the administration of affairs, could never be relied upon or obtained at all, without much of that dexterous management and influence which he thought it both unworthy and impolitic to exert. It seems clearly that he had determined on trying their obedience merely as an experiment, and by no means to put his authority in any manner within their control. Hence he took the bold step of issuing a proclamation for the payment of customs, which by law expired at the late king’s death;2 and Barillon mentions several times that he was resolved to continue in the possession of the 1

Fox, Appendix, p. 8. disgraceful acquiescence of the next par2 ” The legal method.” says Burnet, liament in it. ”’ was to have made entries, and to have The king was thanked in several adtaken bonds for those duties to be paid dresses for directing the customs to be when the parliament should meet and levied, particularly in one from the renew the grant.” Mr. Olslow remarks benchers and barristers of the Middle on this, that he should have said, the Temple. London Gazette, March 11. least illegal and the only justifiable This was drawn by sir Bartholomew method. To which the Oxford editor Shower, and presented by sir Humphrey subjoins that it was the proposal of lord-Mackworth. Life of James, vol. ii. p. 17. keeper North, while the other, which was The former was active as a lawyer in all adopted, was suggested by Jefferies. This the worst measures of these two reigns. is a mistake. North’s proposal was to Yet, after the Revolution, they both becollect the duties under the proclamation, came tory patriots and jealous assertors but to keep them apart from the other of freedom against the government of revenues in the exchequer until the next William III. Barillon, however, takes session of parliament. There was surely notice that this illegal continuance of little difference in point of illegality be-the revenue produced much discontent. tween this and the course adopted. It Fox’s Appendix, 39. And Rochester told was alleged that the merchants, who had him that North and Halifax would have paid duty, would be injured by a tem-urged the king to call a parliament, in porary importation duty free; and cer-order to settle the revenue on a lawful tainly it was inconvenient to make the basis, if that resolution had not been revenue dependent on such a contingency taken by himself. Id. p. 20.

The king as the demise of the crown. But this thought it necessary to apologize to Ba. neither justifies the proclamation nor the rillon for convoking parliament. Id. p 18. Dalrymple, p. 100.

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56 PARLIAMENT OF 1685. CHAP. XIV. revenue, whether the parliament should grant it or no. He was equally decided not to accept it for a limited time. This, as his principal ministers told the ambassador, would be to establish the necessity of convoking parliament from time to time, and thus to change the form of government by rendering the king dependent upon it; rather than which it would be better to come at once to the extremity of a dissolution, and maintain the possession of the late king’s revenues by open force.1 But the extraordinary conduct of this house of commons, so unlike any that had met in England for the last century, rendered any exertion of violence on this score quite unnecessary. The behavior of that unhonored parliament which held its Parliament two short sessions in 1685, though in a great of 1685. measure owing to the fickleness of the public mind and rapid ascendency of tory principles during the late years, as well as to a knowledge of the king’s severe and vindictive temper, seems to confirm the assertion strongly made at the time within its walls, that many of the members had been unduly returned.2 The notorious facts, indeed, as to the forfeiture of corporations throughout the kingdom, and their regrant under such restrictions as might serve the purpose of the crown, stand in need of no confirmation. Those who look at the debates and votes of this assembly, their large grant of a permanent revenue to the annual amount of two millions, rendering a frugal prince, in time of peace, entirely out of all dependence on his people; their timid departure from a resolution taken to address the king on the only matter for which they were really solicitous, the enforcement of the penal laws, on a suggestion of his displeasure;8 their bill entitled For the preservation of hi? 1 Dalrymple, p. 142. The king alludes btre entendu par le terme de religion to this possibility of a limited grant with protestante. La resolution fut prise unamuch resentment and threatening, in his nimement, et sans contradiction, de faire speech on opening the session. une adresse an roy pour le prier de faire 2 Fox, Appendix, p. 93; Lonsdale, p. une proclamation pour 1’execution des 6; Ralph, 860; Evelyn, i. 561. loix contre tons les nonconformistes 8 For this curious piece of parliamen-generalement, c’est-t dire, contre tons tary inconsistency, see Reresby’s Me-ceux qui ne sont pas ouvertement do moirs, p. 113; and Barillon, in the Ap-l’glise Anglicane; cela enferme les prespendix to Fox, p. 95. ” Ii s’est passe byteriens et tons les sectaires, aussi bien avant hier une chose de grande conseque les catholiques Romains. La malice quence dans la chambre basse: il fut de cette resolution fut aussitot reconnu propose le matin que la chambre se met-du roy d’Angleterre, et de ses ministres; toit en comite l’apres diner pour con-les principaux de la chambre basse furent siderer la harangue du roy sur l’affaire mand6s, et ceux que sa majeste Britan*.ie la religion, et savoir ce qui devoit nique croit etre dans ses interets; il leur

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JAMES II. PARLIAMENT OF 1685. 57 majesty’s person, full of dangerous innovations in the law of treason, especially one most unconstitutional clause, that any one moving in either house of parliament to change the descent of the crown should incur the penalties of that offence;1 their supply of 700,0001., after the suppression of Monmouth’s rebellion, for the support of a standing army; 2 will be inclined to believe that, had James been as zealous for the church of England as his father, he would have succeeded in establishing a power so nearly despotic, that neither the privileges of parliament, nor much less those of private men, would have stood in his way. The prejudice which the two last Stuarts had acquired in favor of the Roman religion, so often deplored by thoughtless or insidious writers as one of the worst consequences of their father’s ill fortune, is to be accounted rather among the most signal links in the chain of causes through which a gracious Providence has favored the consolidation of our liberties and welfare. Nothing less than a motive more universally operating than the interests of civil freedom would have stayed the compliant spirit of this unworthy parliament, or rallied, for a time at least, the supporters of indefinite prerogative under a banner they abhorred. We know that the king’s intention was to obtain the repeal of the habeas tiongto repeal corpus act, a law which he reckoned as destructive the habeas of monarchy as the test was of the catholic relig-rp act. ion.8 And I see no reason to suppose that he would have it une reprimande severe de s’Atre laiss6s house of commons, shall move or propose reduire et entrainer & une resolution si in either house of parliament the disheridangereuse et si peu admissible. Il leur son of the rightful and true heir of the declara que, si l’on persistoit i lui faire crown, or to alter or change the descent une pareille adresse, il r6pondroit A la or succession of the crown in the right ohambre basse en termes si d6cisifs et si line, such offence shall be deemed and fermes qu’on ne retourneroit pas a lui adjudged hightreason, and every person fairo une pareille adresse. La maniere being indicted and convicted of such dont sa majeste Britannique s’explique treason shall be proceeded against, and produisit son effet hier matin; et la shall suffer and forfeit as in other cases chambre basse rejeta toute d’une voix ce of hightreason mentioned in this act.” qui avoit ete resolu en comite le jour See what lord Lonsdale says, p. 8 of auparavant.” this bill, which he, among others, conThe only man who behaved with dis-trived to weaken by provisos, so that it tinguished spirit in this wretched parlia-was given up. ment was one in whose political life there 2 Parl. Hist. 1372.

The king’s speech is little else to praise, sir Edward Sey-had evidently shown that the supply was mour. He opposed the grant of the rev-only demanded for this purpose. The enues for life, and spoke strongly against speaker, on presenting the bill for settling the illegal practices in the elections. Fox, the revenue in the former session, claimed 90, 93. it as a merit that they had not inserted 1 Fox, Appendix, p. 156. “Provided any appropriating clauses. Parl. Hist. always, and be it further enacted, that if 1359. any peer of this realm, or member of the 3 Reresby, p. 110.

Barillon, in Fox’s

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58 PROJECTED OVERTHROW OF CHAP. XIV failed of this, had he not given alarm to his highchurch par. liament by a premature manifestation of his design to fill the civil and military employments with the professors of his own mode of faith. It has been doubted by Mr. Fox whether James had, in this part of his reign, conceived the projects commonly imputed to him, of overthrowing, or injuring by any direct acts of power, the protestant establishment of this kingdom. Neither the copious extracts from Barillon’s correspondence with his own court, published by sir John Dalrymple and himself, nor the king’s own memoirs, seem, in his opinion, to warrant a conclusion that anything farther was intended than to emancipate the Roman catholics from the severe restrictions of the penal laws, securing the public exercise of their worship from molestation, and to replace them upon an equality as to civil offices by abrogating the test act of the late reign.1 We find nevertheless a remarkable conversation of the king himself with the French ambassador, which leaves an impression on the mind that his projects were already irreconcilable with that pledge of support he had rather unadvisedly given to the Anglican church at his accession. This interpretation of his language is confirmed by the expressions used at the same time by Sunderland, which are more unequivocal, and point at the complete establishment of the catholic religion.2 The particular care disAppendix, p. 93, 127, &c. “Le feu roi overthrowing the Anglican establishd’Angleterre et celui-ci m’ont souvent ment. dit, qu’un gouvernement ne peut sub-2 “I1 [le roy] me repondit & ce quo sister avec une telle loi.” Dalrymple, je venois de dire, que je connoissois le p. 171. fond de ses intentions pour l’etablisse1 This opinion has been well supported ment de la religion catholique; qu’il by Mr. Sergeant Heywood (Vindication n’esperoit en venir i bout que par l’assisof Mr. Fox’s History, p. 154). In some tance de V.

M.; que je voyois qu’il venoit few of Barillon’s letters to the king of de donner des emplois dans ses troupes France he speaks of James’s intention aux catholiques aussi bien qu’aux pro6tablir la religion catholique; but these testans; que cette 6galite fachoit beauperhaps might be explained by a far coup de gens, mais qu’il n’avoit pas laisse greater number of passages, where he passer une occasion si importante sans says only etablir le libre exercice de la s’en prevaloir; qu’il feroit de meme 5
religion catholique, and by the general regard des choses praticables; et que ju tenor of his correspondence. But though voyois plus clair sur cela dans ses desthe primary object was toleration, I have seins que ses propres ministres, s’en etant no doubt but that they conceived this souvent ouvert avec moi sans reserve.” was to end in establishment. See what P. 104. In a second conversation immeBarillon says, p. 84; though the legal diately afterwards the king repeated, reasoning is false, as might be expected L” que je connoissois le fond de ses desfrom a foreigner. It must at all events seins, et que je pouvois repondre que beadmitted that the conduct of the king, tout son but etoit d’etablir la religion after the formation of the catholic junto catholique; qu’il ne perdroit aucune ocin 1686, demonstrates an intention of casion de ia faire…. que peu i pea il

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JAMEs II. THE ANGLICAN ESTABLISHMENT. 59 played by James in this conversation, and indeed in so many notorious instances, to place the army, as far as possible, in the command of catholic officers, has very much the appearance of his looking towards the employment of force in overthrowing the protestant church, as well as the civil privileges of his subjects. Yet he probably entertained confident hopes, in the outset of his reign, that he might not be driven to this necessity, or at least should only have occasion to restrain a fanatical populace. He would rely on the intrinsic excellence of his own religion, and still more on the temptations that his favor would hold out. For the repeal of the test would not have placed the two religions on a fair level. Catholics, however little qualified, would have filled, as in fact they did under the dispensing power, most of the principal stations in the court, law, and army. The king told Barillon he was well enough acquainted with England to be assured that the admissibility to office would make more catholics than the right of saying mass publicly. va I son but; et que ce qu’il fait pre-terre, et le contenir dans son projet. Je sentement emporte necessairement l’ex-vois clairement l’apprehension que beauercice libre de la religion catholique, qui coup de gens ont d’une liaison avec la se trouvera 6tabli avant qu’un acte de France, et les efforts qu’on ftit pour parlement l’autorise; que je conuoissois l’affoiblir; mais cela ne sera au pouvoir assez l’Angleterre pour savoir que la pos-de personne. si on n’en a pas envie de sibilite d’avoir des emplois et des charges France; c’est sur quoi il faut que vous fera plus de catholiques que la permiis-vous expliquiez nettement, que vous sion de dire des messes publiques; que fassiez connoltre que le roi votre maitro cependant il s’attendoit que V.

M. ne veut aider de bonne foi le roi d’Angleterre l’abandonneroit pas,”

&c. P. 106. Sun-a etablir fermement la religion cathoderland entered on the same subject, lique.” saying, ” Je ne sais pas si l’on voit en The word plus in the above passage is France les choses comme elles sont ici; not in Dalrymple’s extract from this letmais je defie ceux qui les voyent de pros ter, vol. ii. part ii. p. 174, 187. Yet for de ne pas connoitre que le roy mon omitting this word sergeant Heywood maitre n’a rien dans le coeur si avant que (not having attended to Dairymple) cenl’envie d’etablir la religion catholique; sures Mr. Rose as if it had been done qu’il ne peut meme, selon le bon seas et purposely. Vindic. of Fox, p. 154. But la droite raison, avoir d’autre but; que this is not quite judicious or equitable, sans cela il ne sera jamais en silrete, et since another critic might suggest that it sera toujours expose an zele indiscret de was purposely interpolated. No one of ceux qui 6chaufferont les peuples contre common candor would suspect this of Ih catholicite, tant qu’elle ne sera pas Mr. Fox; but his copyist, I presume, plus pleinement etablie. II y a un autre was not infallible. The word plus is chose certaine, c’est que ce plan 1& ne evidently incorrect. The catholic relipent r6ussir que par un concert et une gion was not established at all in any liaison 6troite avec le roi votre maitre; positive sense; what room could there be c’est un projet qui ne peut convenir qu’I for the comparative? M. Mazure, who lui, nl reussir que par lui. Toutes les has more lately perused the letters of autres puissances s’y opposeront ouverte-Barillon at Paris, prints the passage ment, ou le traverseront sous main. On without plus. Hist. de la Revol. ii. 36. salt bien que cela ne convient point au Certainly the whole conversation here prince d’Orange; mais il ne sera pas en ascribed to Sunderland points at some6tat de l’empecher si on veut se conduire thing far beyond the free exercise of the en France comme il est necessaire, c’est-Roman catholic religion. i-dire menager l’amitie du roy d’Angle

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60 PROJECTS OF THE KING. CHAP. XIV. There was, on the one hand, a prevailing laxity of princi. ple in the higher ranks, and a corrupt devotedness to power for the sake of the emoluments it could dispense, which encouraged the expectation of such a nominal change in religion as had happened in the sixteenth century. And, on the other, much was hoped by the king from the church itself. He had separated from her communion in consequence of the arguments which her own divines had furnished; he had conversed with men bred in the school of Laud; and was slow to believe that the conclusions which he had, not perhaps unreasonably, derived from the semi-protestant theology of his father’s reign, would not appear equally irresistible to all minds when free from the danger and obloquy that had attended them. Thus, by a voluntary return of the clergy and nation to the bosom of the catholic church, he might both obtain an immortal renown, and secure his prerogative against that religious jealousy which had always been the aliment of political factions.1 Till this revolution, however, could be brought about, he determined to court the church of England, whose boast of exclusive and unlimited loyalty could hardly be supposed entirely hollow, in order to obtain the repeal of the penal laws and disqualifications which affected that of Rome. And though the maxims of religious toleration had been always in his mouth, he did not hesitate to propitiate her with the most acceptable sacrifice, the persecution of nonconforming ministers. He looked upon the dissenters as men of republican principles; and if he could have made his bargain for the free exercise of the catholic worship, I see no reason to doubt that he would never have announced his general indulgence to tender consciences.2 1 It is curious to remark that both ation, or the national establishment, of James and Louis considered the retstab-the church of Rome. Mr. Fox’s remark lishment of the catholic religion and of must, at all events, be limited to the year the royal authority as closely connected, 1685. and parts of one great system. Barillon 2 Fox, Appendix, p. 33. Ralph, 869. in Fox. Append. 19, 57. Mazure, i. 346. The prosecution of Baxter, for what was Mr. Fox maintains (Hist. p. 102) that called reflecting on the bishops, is an inthe great object of the former was abso-stance of this. State Trials, ii. 494. ute power rather than the interests of Notwithstanding James’s affected zeal for popery. Doubtless, if James had been toleration, he did not scruple to congrata protestant, his encroachments on the ulate Louis on the success of his very rights of his subjects would not have different mode of converting heretics. been less than they were, though not Yet I rather believe him to have been exactly of the same nature; but the really averse to persecution, though with main object of his reign can hardly be true Stuart insincerity he chose to fatter denied to have been either the full toler-his patron.

Dalrymple, p. 177. A book

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JAMES II. NATIONAL HATRED OF ROMANISM. 61 But James had taken too narrow a view of the mighty people whom he governed. The laity of every class, the tory gentleman almost equally with the James deceived as to presbyterian artisan, entertained an inveterate ab-the disposihorrence of the Romish superstition. Their first tions of his subjects education, the usual tenor of preaching, far more polemical than at present, the books most current, the tradi. tion of ancient cruelties and conspiracies, rendered this a cardinal point of religion even with those who had little beside. Many still gave credit to the popish plot; and with those who had been compelled to admit its general falsehood, there remained, as is frequently the case, an indefinite sense of dislike and suspicion, like the swell of waves after a storm, which attached itself to all the objects of that calumny.l This was of course enhanced by the insolent and injudicious confidence of the Romish faction, especially the priests, in their demeanor, their language, and their publications. Meanwhile a considerable change had been wrought in the doctrinal system of the Anglican church since the Restoration. The men most conspicuous in the reign of Charles II. for their writings, and for their argumentative eloquence in the pulpit, were of the class who had been by Claude, published in Holland, entitled pounds, which, relatively to the opulence “Plaintes des Protestans cruellement of the kingdom, almost equals any muopprimes dans le royaume de France,” nificence of this age. Id. p. 123. was ordered to be burnt by the hangman 1 It is well known that the house of on the complaint of the French ambassa-commons in 1685 would not pass the bill dor, and the translator and printer to be for reversing Lord Stafford’s attainder, inquired after and prosecuted. Lond. against which a few peers had entered a Gazette, May 8,1686. Jefferies objected to very spirited protest. Parl. Hist. 1361. this in council as unusual; but the king Barillon says, this was ” parce que dans was determined to gratify his most Chris-le pr6ambule il y a des mots inseres qui tian brother. Mazure, ii. 122. It is said semblent favoriser la religion catholique; also that one of the reasons for the dis-cela seul a retarde la r6habilitation du grace of lord Halifax was his speaking comte de Stafford, dont tous sont d’accord warmly about the revocation of the edict b 1’egard du fond.” Fox, App. p. 110. of Nantes. Id. p. 55. Yet James some-But there was another reason which times blamed this himself, so as to dis-might have weight.

Stafford had been please Louis. Id. p. 56. In fact, it very convicted on the evidence, not only of much tended to obstruct his own views Oates, who had been lately found guilty for the establishment of a religion which of perjury, but of several other witnesses, had just shown itself in so odious a form. especially Dugdale and Turberville. And For this reason, though a brief was read these men had been brought forward by in churches for the sufferers, special di-the government against Lord Shaftesbury rections were given that there should be and College, the latter of whom had been no sermon. It is even said that he took hanged on their testimony. The reon himself the distribution of the money versal of Lord Stafford’s attainder, just collected for the refugees, in order to stop as we now think it, would have been a the subscription, or, at least, that his in-disgrace to these crown prosecutions; terference had that effect.

The enthusi-and a conscientious tory would be loath asm for the French protestants was such to vote for it. that single persons subscribed 500 or 1000

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62 POPULARITY OF THE KING. CHAP. XIV denominated Latitudinarian divines; and, while they maintained the principles of the Remonstrants in opposition to the school of Calvin, were powerful and unequivocal supporters of the protestant cause against Rome. They made none of the dangerous concessions which had shaken the faith of the duke and duchess of York; they regretted the disuse of no superstitious ceremony; they denied not the one essential characteristic of the Reformation, the right of private judgment; they avoided the mysterious jargon of a real presence in the Lord’s Supper. Thus such an agreement between the two churches as had been projected at different times was become far more evidently impracticable, and the separation more broad and defined.1 These men, as well as others who do not properly belong to the same class, were now distinguished by their courageous and able defences of the Reformation.

The victory, in the judgment of the nation, was wholly theirs. Rome had indeed her proselytes, but such as it would have been more honorable to have wanted. The people heard sometimes with indignation, or rather with contempt, that an unprincipled minister, a temporizing bishop, or a licentious poet, had gone over to the side of a monarch who made conformity with his religion the only certain path to his favor. The short period of a four years’ reign may be divided by roroation several distinguishing points of time, which make of parlia-so many changes in the posture of government. ment. From the king’s accession to the prorogation of parliament on November 30, 1685, he had acted apparently in concurrence with the same party that had supported him in his brother’s reign, of which his own seemed the natural and almost undistinguishable continuation. This party, which had become incomparably stronger than the opposite, had greeted him with such unbounded professions,2 the temper 1 “

In all the disputes relating to that about religion ever since. Those unmystery before the civil wars, the church learned and fanatical notions were never of England protestant writers owned the heard of till doctor Stillingfleet’s late real presence, and only abstracted from invention of them, by which he exposed the modus or manner of Christ’s body himself to the lash, not only of the Robeing present in the eucharist, and man catholics, but to that of many of therefore durst not say but it might be the church of England controvertists there by transubstantiation as well as by too.” Life of James. ii. 146. any other way…. It was only of late 2 See London Gazettes, 1685, passim; years that such principles have crept the most remarkable are inserted by into the church of England, which, hav-Ralph and Kennet. I am sure the ading been blown into the parliament dresses which we have witnessed in this house, had raised continual tumults age among a neighboring people are not

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JAMES II. IMPOLITIC CONDUCT OF THE KING. 63 of its representatives had been such in the first session of parliament, that a prince less obstinate than James might have expected to succeed in attaining an authority which the nation seemed to offer. A rebellion speedily and decisively quelled confirms every government; it seemed to place his own beyond hazard. Could he have been induced so change the order of his designs, and accustom the people to a military force, and to a prerogative of dispensing with statutes of temporal concern, before he meddled too ostensibly with their religion, he would possibly have gained both the objects of his desire.

Even conversions to popery might have been more frequent, if the gross solicitations of the court had not made them dishonorable. But, neglecting the hint of a prudent adviser, that the death of Monmouth left a far more dangerous enemy behind, he suffered a victory that might have insured him success to inspire an arrogant confidence that led on to destruction.

Master of an army, and determined to keep it on foot, he naturally thought less of a good understanding with parliament.1 He had already rejected on the whole more fulsome and disgrace-terror of Christendom, we never having ful. Addresses, however, of all descrip-had a prince for many ages that had so tions, as we well know, are generally the great a reputation for experience and a composition of some zealous individual, martial spirit.” P. 3. This last sentence whose expressions are not to be taken as is a truly amusing contrast to the real entirely those of the subscribers.

Still truth. these are sufficient to manifest the gen-1 L On voit qu’insensiblement les caeral spirit of the times. tholiques auront les armes a la main; The king’s popularity at his accession, c’est nn etat bien different de l’oppreswhich all contemporary writers attest, sion oh ils 6toient, et dont les protestans is strongly expressed by lord Lonsdale. z61es recoivent une grande mortification: “The great interest he had in his broth-ils voyent bien que le roy d’Angleterre er, so that all applications to the king fera le reste quand il le pourra. La seamcd to succeed only as he favored levee des troupes, qui seront bientat them, and the general opinion of him to completes, fait juger que le roy d’Anglebe a prince steady above all others to his terre vent etre en etat de se faire obeir, word, made him at that time the most et de n’ttre pas gene par les loix qui se popular prince that had been known in trouveront contraires.

ce qu’il vent England for a long time. And from etablir.” Barillon, in Fox’s Appendix, men’s attempting to exclude him, they, 111.’ II me paroit,” he says, June 25, at this juncture of time, made him their ” que le roy d’Angleterre a ete fort aise darling; no more was his religion terri-d’avoir une pretexte de lever des troupes, ble; his magnanimous courage, and the et qu’il croit que l’entreprise de M. le hardships he had undergone, were the duc de Monmouth ne servira qu’& le discourse of all men. And some reports rendre plus maitre de son pays.” And of a misunderstanding betwixt the French on July 30, “; Le projet du roy d’Angleking and him, occasioned originally by terre est d’abolir entierement les milices, the marriage of the lady Mary to the dont il a reconnu l’inutilite et le danger prince of Orange, industriously spread en cette derniere occasion; et de faire, abroad to amuse the ignorant, put men s’il est possible, que le parlement etablisse in hopes of what they had long wished; le fond destine pour les milices & l’enthat, by a conjunction of Holland and tretien des troupes reglees. Tout cela Spain, &c., we might have been able to change entierement l’etat de ce pays ici, reduce France to the terms of the Pyre-et met les Anglois dans une condition nean treatv, which was now become the bien differente de celle oh ils ont ete jes

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64 PROROGATION OF PARLIAMENT. CHAP. XIV the proposition of employing bribery among the members, an expedient very little congenial to his presumptuous temper and notions of government.l They were assembled, in his opinion, to testify the nation’s loyalty, and thankfulness to their gracious prince for not taking away their laws and liberties. But, if a factious spirit of opposition should once prevail, it could not be his fault if he dismissed them till more becoming sentiments should again gain ground.2 Hence he did not hesitate to prorogue, and eventually to dissolve, the most compliant house of commons that had been returned since his family had sat on the throne, at the cost of 700,0001., a grant of supply which thus fell to the ground, rather than endure any opposition on the subject of the test and penal laws. Yet, from the strength of the court in all divisions, it must seem not improbable to us that he might, by the usual means of management, have carried both of those favorite measures, at least through the lower house of parliament. For the crown lost the most important division only by one vote, and had in general a majority. The very address about unqualified officers, which gave the king such offence as to bring on a prorogation, was worded in the most timid manner; the house having rejected unanimously the words first inserted by their committee, requesting that his majesty would be pleased not to continue them in their employments, for a vague petition that “he would be graciously pleased to give such directions that no apprehensions or jealousies may remain in the hearts of his majesty’s good and faithful subjects.” 8 ques i present. Ils le connoissent, et 59, 60. Mazure, i.

432. But this was voyent bien qu’un roy de differente re-prevented, partly by the sudden invasion ligion que celle du pays, et qui se trouve of Monmouth, which made a new session arme, ne renoncera pas aisement aux necessary, and gave hopes of a large supavantages que lui donne la detaite des re-ply for the army; and partly by the unbelles, et les troupes qu’il a sur pied.” willingness of the king of France to And afterwards: “Le roi d’Angleterre advance as much money as the English m’a dit que, quoiqu’il arrive, il conser-government wanted. In fact, the plan vera les troupes sur pied, quand mbme of continual prorogations answered as le parlement ne lui donneroit pour les well. entretenir. Il connoit bien que le parle-3

Journals, Nov. 14. Barillon says ment verra mal volontiers cet 6tablisse-that the king answered this humble adment; mais ilveut Btre assure du dedans dress’ avec des marques de fierte et de de son pays. et il croit ne le pouvoir etre colere sur le visage, qui faisoit assez consans cela.”

Dalrymple, 169, 170. n8itre ses sentimens.” Dalrymple, 172. 1 Fox’s App.

69. Dalrymple, 153. See, too, his letter in Fox, 19. 2 It had been the intention of SunderA motion was made to ask the lords’ land and the others to dissolve parlia-concurrence in this address, which, acment as soon as the revenue for life cording to the Journals, was lost by 212
should be settled, and to rely in future to 138. In the Life of James, ii.

55, it on the assistance of France. Fox’s App. is said that it was carried against the

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JAMES II. DISPENSING POWER CONFIRMED. 65 The second period of this reign extends fiom the prorogation of parliament to the dismissal of the earl of Rochester from the treasury in 1686. During this time James, exasperated at the reluctance of the commons to acquiesce in his measures, and the decisive opposition of the church, threw off the half restraint he had imposed on himself; and showed plainly that, with a bench of judges to pronounce his commands, and an army to enforce them, he would not suffer the mockery of constitutional limitations to stand any longer in his way.

Two important steps were made this year towards the accomplishment of his designs, by the judgment of the court of king’s bench in the case of sir Edward Hales, confirming the right of the crown to dispense with the test act, and by the establishment of the new ecclesiastical commission. The kings of England. if not immemorially, yet from a very early era in our records, have exercised a prerogative unquestioned by parliament, and rec-power conognized by courts of justice, that of granting dis-firmed by pensations from the prohibitions and penalties of the juges. particular laws. The language of ancient statutes was usually brief and careless, with few of those attempts to regulate prospective contingencies, which, even with our pretended modern caution, are so often imperfect; and, as the sessions were never regular, sometimes interrupted for several years, there was a kind of necessity, or great convenience, in deviating occasionally from the rigor of a general prohibition; more often perhaps some motive of interest or partiality would induce the crown to infringe on the legal rule. This dispensing power, however, grew up, as it were, collaterally to the sovereignty of the legislature, which it sometimes appeared to overshadow. It was, of course, asserted in large terms by councillors of state, and too frequently by the interpreters of law. Lord Coke, before he had learned the bolder tone of his declining years, lays it down, that no act of parliament, can bind the king from any prerogative which is inseparable from his person, so that he may not dismotion by only four voices; and this I equal. It is said in this manuscript that find confirmed by a manuscript account those who opposed the address opposed of the debates (Sloane MSS. 1470), which also the motion for requesting the lords’ gives the numbers 212 to 208. The concurrence in it; but James represents journal probably is misprinted, as the it otherwise, as a device of the court to court and country parties were very quash the proceeding. VOL. III. 5

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66 DISPENSING POWER CONFIRMED. CHAP. XIV. pense with it by a non obstante; such is his sovereign power to command any of his subjects to serve him for the public weal, which solely and inseparably is annexed to his person, and cannot be restrained by any act of parliament. Thus, although the statute 23 H. VI. c. 8, provides that all patents to hold the office of sheriff for more than one year shall be void, and even enacts that the king shall not dispense with it, yet it was held by all the judges in the reign of Henry VII., that the king may grant such a patent for a longer term on good grounds, whereof he alone is the judge. So also the statutes which restrain the king from granting pardons in case of murder have been held void; and doubtless the constant practice has been to disregard them.1 This high and dangerous prerogative nevertheless, was subject to several limitations, which none but the grosser flatterers of monarchy could deny. It was agreed among lawyers that the king could not dispense with the common law, nor with any statute prohibiting that which was malum in se, nor with any right or interest of a private person or corporation.2

The rules, however, were still rather complicated, the boundaries indefinite, and therefore varying according to the political character of the judges. For many years dispensations had been confined to taking away such incapacity as either the statutes of a college, or some law of little consequence, perhaps almost obsolete, might happen to have created. But when a collusive action was brought against sir Edward Hales, a Roman catholic, in the name of his servant, to recover the penalty of 5001.

imposed by the test act, for I Coke, 12 Rep. 18. precedents for it; namely, that against 2 Vaughan’s Reports. Thomas v. Sor-new buildings, and about leather, when rell, 333. [Lords’ Journals, 29th Dec. the word nuisance is used to the pur1666. “The commons introduced the pose; and farther, that they do not rob word’nuisance’ into the Irish bill, in the king of any right he ever had: for order to prevent the king’s dispensing he never had a power to do hurt to his with it. The lords did argue that it people, nor would exercise it; and therewas an ill precedent, and that which will fore there is no danger in the passing ever hereafter be held as a way of pre-this bill of imposing on his prerogative; venting the king’s dispensation with acts, and concluded that they think they ought and therefore rather advise to pass the to do this, so as the people may really bill without that word, and let it go ac-have the benefit of it when it is passed, companied with a petition to the king &c. The lords gave way soorr afterthat he will not dispense with it, this wards.”

Pepys’s Diary, Jan. 9. 1686-7. being a more civil way to the king.

Clarendon speaks of this precaution They answered well, that this do imply against the dispensing power as derogathat the king should pass their bill, and tory to the king’s prerogative, ”’ divestyet with design to dispense with it; ing him of a trust that was inherent in which is to suppose the king guilty of him from all antiquity.” Life of Clarenabusing them. And more, they produce don, p. 380.]

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JAMES II. CASE OF HALES. 67 accepting the commission of colonel of a regiment, without the previous qualification of receiving the sacrament in the church of England, the whole importance of the alleged prerogative became visible, and the fate of the established constitution seemed to hang upon the decision. The plaintiff’s advocate, Northey, was known to have received his fee from the other side, and was thence suspected, perhaps anfairly, of betraying his own cause;1 but the chief-justice Herbert showed that no arguments against this prerogative would have swayed his determination. Not content with treating the question as one of no difficulty, he grounded his decision in favor of the defendant upon principles that would extend far beyond the immediate case. He laid it down that the kings of England were sovereign princes; that the laws of England were the king’s laws; that it was consequently an inseparable prerogative of the crown to dispense with penal laws in particular cases, for reasons of which it was the sole judge. This he called the ancient remains of the sovereign power and prerogative of the kings of England, which never yet was taken from them, nor could be. There was no law, he said, that might not be dispensed with by the supreme lawgiver (meaning evidently the king, since the proposition would otherwise be impertinent); though he made a sort of distinction as to those which affected the subject’s private right. But the general maxims of slavish churchmen and lawyers were asserted so broadly, that a future judge would find little difficulty in making use of this precedent to justify any stretch of arbitrary power.2 It is by no means evident that the decision in this particular case of Hales, which had the approbation of eleven judges out of twelve, was against law.3 The course of former precedents seems rather to furnish its justification. But the less untenable such a judgment in favor of the dispensing power might appear, the more necessity would men of reflection perceive of making some great change in the relations of the people towards their sovereign. A prerogative of setting aside the enactments of parliament, which in trifling matters, and for the sake of conferring a 1 Burnet and others. This hardly ap-Powell is said to have doubted. The king pears by Northey’s argument. had privately secured this opinion of the 2 State Trials, xi. 1165-1280. 2 Show-bench in his favor before the action was er’s Reports, 475. brought. Life of James, ii. 78. 3

The dissentient judge was Street, and

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68 ECCLESIASTICAL COMMISSION. CHAP. XIV benefit on individuals, might be suffered to exist with little mischief, became intolerable when exercised in contravention of the very principle of those statutes which had been provided for the security of fundamental liberties or institutions. Thus the test act, the great achievement, as it had been reckoned, of the protestant party, for the sake of which the most subservient of parliaments had just then ventured to lose the king’s favor, became absolutely nugatory and ineffective, by a construction which the law itself did not reject. Nor was it easy to provide any sufficient remedy by means of parliament; since it was the doctrine of the judges that the king’s inseparable and sovereign prerogatives in matters of government could not be taken away or restrained by statute. The unadvised assertion in. a court of justice of this principle, which, though not by any means novel, had never been advanced in a business of such universal concern and interest, may be said to have sealed the condemnation of the house of Stuart. It made the coexistence of an hereditary line, claiming a sovereign prerogative paramount to the liberties they had vouchsafed to concede, incompatible with the security or probable duration of those liberties. This incompatibility is the true basis of the Revolution in 1688. But whatever pretext the custom of centuries or the authority of compliant lawyers might afford for these dispensations from the test, no legal defence could be made for the Ecclesiastical ecclesiastical commission of 1686. The high-comcommission. mission court of Elizabeth had been altogether taken away by an act of the long parliament, which went on to provide that no new court should be erected with the like power, jurisdiction, and authority. Yet the commission issued by James II.

followed very nearly the words of that which had created the original court under Elizabeth, omitting a few particulars of little moment.1 It is not known, I believe, at whose suggestion the king adopted this measure.

The preeminence reserved by the commission to Jefferies, whose presence was made necessary to all their meetings, and the violence with which he acted in all their transactions on record, seem to point him out as its great promoter; though it is true 1 State Trials, xi. 1132, et seq. The ester and Sunderland, and chief-justice members of the commission were the pri-Herbert. Three were to form a quorum, mate Sancroft (who never sat), Crew and but the chancellor necessarily to be one. Sprat, bishops of Durham and Rochester, Ralph, 929. The earl of Mulgrave was the chancellor Jefferies, the earls of Roch-introduced afterwards.

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JAMES II. SCHEME TO ESTABLISH POPERY. 69 that, at a later period, Jefferies seems to have perceived the destructive indiscretion of popish counsellors. It displayed the king’s change of policy and entire separation from that highchurch party to whom he was indebted for the throne, since the manifest design of the ecclesiastical commission was to bridle the clergy, and silence the voice of protestant zeal. The proceedings against the bishop of London, and other instances of hostility to the established religion, are well known. Elated by success and general submission, exasperated by the reluctance and dissatisfaction of those on whom he had relied for an active concurrence with his desires, the king seems at least by this time to have formed the scheme of subverting, or impairing as far as possible, the religious establishment. He told Barillon, allud-scheme of ing to the ecclesiastical commission, that God had establishing permitted all the statutes which had been enacted popery.

against the catholic religion to become the means of its reistablishment.1

But the most remarkable evidence of this design was the collation of Massey, a recent convert, to the deanery of Christ Church, with a dispensation from all the statutes of uniformity and other ecclesiastical laws, so ample that it made a precedent, and such it was doubtless intended to be, for bestowing any benefices upon members of the church of Rome. This dispensation seems to have been not generally known at the time. Burnet has stated the circumstances of Massey’s promotion inaccurately; and no historian, I believe, till the publication of the instrument after the middle of the last century, was fully aware of the degree in which the king had trampled upon the securities of the established church in this transaction.2 A deeper impression was made by the dismissal of Rochester from his post of lord-treasurer; so nearly Dismissal consequent on his positive declaration of adhe-of lord Rochester. rence to the protestant religion, after the dispute Rochester 1

Mazure, ii. 130. college, they are obliged. There is also 2 Henry Earl of Clarendon’s Papers, in the same book a dispensation for one ii. 278. In Gutch’s Collectanea Curiosa, Sclater, curate of Putney and rector of vol.

i. p. 287, we find not only this li-Esher, from using the common prayer, cense to Massey, but one to Obadiah &c., &c. Id. p. 290. These are in May, Walker, master of University College, 1686, and subscribed by Powis. the and to two fellows of the same, and one solicitor-general. The attorney-genpral, of Brazen-nose College, to absent them-Sawyer, had refused; as we learn from selves from church, and not to take the Reresby.

p. 133, the only contemporary oaths of supremacy and allegiance, or do writer, perhaps, who mentions this very any other thing to which, by the laws remarkable aggression on the established and statutes of the realm, or those of the church.

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70 DISMISSAL OF ROCHESTER. CHAP. XIV. held in his presence at the king’s particular command, between divines of both persuasions, that it had much the appearance of a resolution taken at court to exclude from the high offices of the state all those who gave no hope of conversion.1 Clarendon had already given way to Tyrconnel in the government of Ireland; the privy seal was bestowed on a catholic peer, lord Arundel; Lord Bellasis, of the same religion, was now placed at the head of the commission of the treasury; Sunderland, though he did not yet cease to conform, made no secret of his pretended change of opinion; the council-board, by virtue of the dispensing power, was filled with those who would refuse the test; a small junto of catholics, with father Petre, the king’s confessor, at their head, took the management of almost all affairs upon themselves; 2
men whose known want of principle gave reason to expect their compliance were raised to bishoprics; there could be no rational doubt of a concerted scheme to depress and discountenance the established church. The dismissal of Rochester, who had gone great lengths to preserve his power and emoluments, and would in all probability have concurred in the establishment of arbitrary power under a protestant sovereign,8 may be reckoned the most un1 The catholic lords, according to Ba-catholiques. My lord Sunderland ne se rillou, had represented to the king that maintient que par ceux-ci, et par son d6nothing could be done with parliament vouement i faire tout ce qu’il croit itre so long as the treasurer caballed against agreable sur ce point. II a le secret des the designs of his majesty. James prom-affaires de Rome.” Mazure, ii. 124. ” On ised to dismiss him if he did not change feroit ici,” says Barillon, the same year, his religion. Mazure, ii. 170. The queen’ ce qu’on fait en France”

[that is, I had previously been rendered his enemy suppose, dragonner et fusiller les hereby the arts of Sunderland, who persuaded tiques], ” si lon pouvoit esperer de reusher that lord and lady Rochester had sir.” P.

127. favored the king’s intimacy with the 3 Rochester makes so very bad a figure countess of Dorchester in order to thwart in all Barillon’s correspondence, that the popish intrigue. Id. 149. “‘On volt,” there really seems no want of candor in says Barillon on the treasurer’s dismissal, this supposition. He was evidently the ” que la cabale catholique a entierement most active coo’perator in the connection prevalu. On s’attendoit depuis quelque of both the brothers with France, and temps i ce qui est arrive au comte de seems to have had as few compunctious Rochester; mais l’execution fait encore visitings, where the church of England une nouvelle impression sur les esprits.” was not concerned, as Sunderland himP. 181. self. Godolphin was too much implicated, 2 Life of James, 74. Barillon fre-at least by acquiescence, in the counsels quently mentions this cabal as having of this reign; yet we find him suspected in effect the whole conduct of affairs in of not wishing ”’ se passer entierement de their hands. Sunderland belonged to parlement, et a rompre nettement avec them; but Jefferies, being reckoned on le prince d’Orange.” Fox, Appendix, the protestant side, had, I believe, very p. 60. little influence for at least the two latter If Rochester had gone over to the Royears of the king’s reign.’ Les affaires manists, many, probably, would have de ce pays-ci,” says Bonrepos in 1686, followed: on the other hand, his steadi-; ne roulent i present que sur la religion. ness retained the wavering. It was one Le roi est absolument gouverne par les of the first great disappointments with

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JAMES II. THE PRINCE OF ORANGE. 71 equivocal evidence of the king’s intentions; and from thence we may date the decisive measures that were taken to counteract them. It was, I do not merely say the interest, but the clear right and bounden duty, of the prince of Orange to rince o watch over the internal politics of England, on Orange account of the near connection which his own alarmed. birth and his marriage with the presumptive heir had created. He was never to be reckoned a foreigner as to this country, which, even in the ordinary course of succession, he might be called to govern. From the time of his union with the princess Mary he was the legitimate and natural ally of the whig party; alien in all his sentiments from his two uncles, neither of whom, especially James, treated him with much regard, on account merely of his attachment to religion and liberty, for he might have secured their affection by falling into their plans. Before such differences as subsisted between these personages, the bonds of relationship fall asunder like flax; and William would have had at least the sanction of many precedents in history if he had employed his influence to excite sedition against Charles or James, and to thwart their administration. Yet his conduct appears to have been merely defensive; nor had he the remotest connection with the violent and factious proceedings of Shaftesbury and his partisans. He played a very dexterous, but apparently very fair, game throughout the last years of Charles, never losing sight of the popular party, through whom alone he could expect influence over England during the life of his father-in-law, while he avoided any direct rupture with the brothers, and every reasonable pretext for their taking offence. It has never been established by any reputable testimony, though perpetually asserted, nor is it in the least degree probable, that William took any share in prompting the invasion of Monmouth.1 But it is nevertheless manifest that which the king met. But his dismissal and hazardous policy was totally out of from the treasury created a sensible William’s character: nor is there much alarm.

Dalrymple, 179. more reason to believe what is insinuated 1 Lord Dartmouth wrote to say that by James himself (Macpherson’s ExFletcher told him there were good tracts, p. 144; Life of James, ii. 34), grounds to suspect that the prince, un-that Sunderland had been in secret corderhand, encouraged the expedition, with respondence with Monmouth, unless, design to ruin the duke of Monmouth; indeed, it were, as seems hinted in the and this Dalrymple believes, p. 138. It latter work, with the king’s knowledge.‘s needless to observe that such subtle

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72 EFFECT OF MONMOUTH’S REBELLION. CRAP. XIV. he derived the greatest advantage from this absurd rebellion and from its failure, not only as it removed a mischievous adventurer, whom the multitude’s idle predilection had elevated so high that factious men would, under every government, have turned to account his ambitious imbecility; but as the cruelty with which this unhappy enterprise was punished rendered the king odious,1 while the success of his arms inspired him with false confidence and neglect of caution. Every month, as it brought forth evidence of James’s arbitrary projects, increased the number of those who looked for deliverance to the prince of Orange, either in the course of succession, or by some special interference. He had, in fact, a stronger motive for watching the councils of his father-inlaw than has generally been known. The king was, at his accession, in his fifty-fifth year, and had no male children; nor did the queen’s health give much encouragement to expect them. Every dream of the nation’s voluntary return to the church of Rome must have vanished, even if the consent of a parliament could be obtained, which was nearly vain to think of’; or if open force and the aid of France should enable James to subvert the established religion, what had the catholics to anticipate from his death but that fearful 1 The number of persons who suffered anecdotes. See State Trials, xi. 303. But the sentence of the law, in the famous the king speaks with apparent approwestern assize of Jefferies, has been dif-bation of what he calls Jefferies’s camferently stated; but according to a list paign, in writing to the prince of Orange in the Harleian Collection, n. 4689, it (Dalrymple, 165); and I have heard that appears to be as follows: at Winchester, there are extant additional proofs of his one (Mrs. Lisle) executed; at Salisbury, perfect acquaintance with the details of none; at Dorchester, 74 executed, 171
those assizes: nor, indeed, can he be transported; at Exeter, 14 executed, 7 supposed ignorant of them. Jefferies transported; at Taunton, 144
executed, himself, before his death, declared that 284 transported; at Wells, 97 executed, he had not been half bloody enough for 393
transported. In all, 330 executed, him by whom he was employed. Burnet, 855 transported; besides many that were 651 (note to Oxford edition, vol.

iii.). left in custody for want of evidence. It The king, or his biographer in his behalf, may be observed that the prisoners sen-makes a very awkward apology for the tenced to transportation appear to have execution of major Holmes, which is been made over to some gentlemen of shown by himself to have been a gross interest at court, among others to sir breach of faith. Life of James, ii. 43. Christopher Musgrave, who did not blush It is unnecessary to dwell on what to beg the grant of their unfortunate may be found in every history-the countrymen to be sold as slaves in the trials of Mrs. Lisle, Mrs. Gaunt, and colonies, alderman Cornish; the former before The apologists of James II. have en-Jefferies, the two latter before Jones. his deavored to lay the entire blame of these successor as chief-justice of K. B., a cruelties on Jefferies, and to represent judge nearly as infamous as the former, the king as ignorant of them. Roger though not altogether so brutal. Both North tells a story of his brother’s inter. Mrs. Lisle’s and Cornish’s convictions ference, which is plainly contradicted by were without evidence, and consequently known dates, and the falsehood of which were reversed after the Revolution.

State throws just suspicion on his numerous Trials, vol. xi.

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JAMES II. INTRIGUE TO SET ASIDE PRINCESS OF ORANGE. 73 reaction which had ensued upon the accession of Elizabeth? This had already so much disheartened the moderate part of their body that they were most anxious not to urge forward a change for which the kingdom was not ripe, and which was so little likely to endure, and used their influence to promote a reconciliation between the king and prince of Orange, contenting themselves with that free exercise of their worship which was permitted in Holland.1 But the ambitious priest hood who surrounded the throne had bolder projects. A scheme was formed early in the king’s reign to exclude the princess of Orange from the succession in favor In I Plan of setof her sister Anne, in the event of the latter’s ting the conversion to the Romish faith. The French princess ministers at our court, Barillon and Bonrepos, gave ear to this hardy intrigue. They flattered themselves that both Anne and her husband were favorably disposed. But in this they were wholly mistaken. No one could be more unconquerably fixed in her religion than rejectedby that princess. The king himself, when the Dutch the king.

ambassador, Van Citers, laid before him a document, probably drawn up by some catholics of his court, in which these audacious speculations were developed, declared his indignation at so criminal a project. It was not even in his power, he let the prince afterwards know by a message, or in that of parliament, according to the principles which had been maintained in his own behalf, to change the fundamental order of succession to the crown.2 Nothing indeed can more forcibly paint the desperation of the popish faction than their 1 Several proofs of this appear in the William openly declared his willingcorrespondence of Barillon. Fox, 135; ness to concur in taking off the penal Mazure, ii. 22. The nuncio, M. d’Adda, laws, provided the test might remain. was a moderate man, and united with Burnet, 694; Dalrymple, 184; Mazure, the moderate catholic peers, Bellasis, ii. 216, 250. 346. James replied that he Arundel, and Powis. Id.

127. This must have all or nothing. Id. 353. party urged the king to keep on good 2 I do not know that this intrigue has terms witt the prince of Orange, and to been brought to light before the recent give way about the test. Id. 184, 255. valuable publication of M. Mazure, cerThey were disgusted at father Petre’s tainly not with such full evidence. See introduction into the privy council; 308, i. 417; ii. 128, 160, 165, 167, 182, 188, 353. But it has ever been the misfor-192. Barillon says to his master in one tune of that respectable body to suffer place, -” C’est une matiere fort delicate unjustly for the follies of a few. Barillon a traiter. Je sais pourtant qu’on en admits very early in James’s reign that parle au roi d’Angletcrre; et qu’avec le many of them disliked the arbitrary pro-temps on ne d6sespere pas de trouver des ceedings of the court: “i;s pretendent moyens pour faire passer la couronne Atre bons Anglois, c’est-a-dire, ne pas sur la tlte d’un h6ritier catholiquc. 11
desirer que le roi d’Angleterre At>, i la faut pour cela venir a bout de beaucoup nation ses privileges et ses libert6s.” de choses qui ne sont encore que cor Mazure, i. 404. mencees.”

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74 CHURCHILL AND SUNDERLAND. CHAP. XIV. entertainment of so preposterous a scheme. But it naturally increased the solicitude of William about the intrigues of the English cabinet. It does not appear that any direct overtures were made to the prince of Orange, except by a very few malecontents, till the embassy of Dykvelt from the States in the Spring of 1687. It was William’s object to Ohertlesf ascertain through that minister, the real state ot contents to parties in England. Such assurances as he carthe prince of Orange. ried back to Holland gave encouragement to an enterprise that would have been equally injudicious and unwarrantable without them.1 Danby, Halifax, Nottingham, and others of the tory as well as whig factions, entered into a secret correspondence with the prince of Orange; some from a real attachment to the constitutional limitations of monarchy; some from a conviction that, without open apostasy from the protestant faith, they could never obtain from James the prizes of their ambition. This must have been the predominant motive with Lord Churchill, who never gave any proof of solicitude about civil liberty; and his influence taught the princess Anne to distinguish her interests from those of her father. It was about this time also that even Sunderland entered upon a mysterious communication with the prince of Orange; but whether he afterwards served his present master only to betray him, as has been generally believed, or sought rather to propitiate, by clandestine professions, one who might in the course of events become such, is not perhaps what the evidence already known to the world will enable us to determine.2 The apologists of James have often represented Sunderland’s treachery as extending back to the commencement of this reign, as if he had entered upon the king’s service with no other aim than to put him on measures that would naturally lead to his ruin. But the simpler hypothesis is probably nearer the truth; a corrupt and artful statesman could have no better prospect for his own advantage than the power and popularity of a government which he administered; it was a conviction of the king’s incorrigible and infatuated adherence 1 Burnet; Dalrymple; Mazure. compliment by Dykvelt, May 28, refer2 The correspondence began by an af-ring to what that envoy had to commufectedly obscure letter of lady Sunderland nicate. Churchill.

Nottingham, Rochesto the prince of Orange, dated March 7, ter, Devonshire, and others, wrote also 1687: Dalrymple, 187. The meaning, by Dykvelt.

Halifax was in correspondhowever, cannot be misunderstood. Sun-ence at the end of 1686. derland himself sent a short letter of

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JAMES II. DECLARATION OF INDULGENCE. 75 to designs which the rising spirit of the nation rendered utterly infeasible, an apprehension that, whenever a free parliament should be called, he might experience the fate of Strafford as an expiation for the sins of the crown, which determined him to secure as far as possible his own indemnity upon a revolution that he could not have withstood.1 The dismissal of Rochester was followed up, at no great distance of time, by the famous declaration for lib-Declaration erty of conscience, suspending the execution of all for liberty of penal laws concerning religion, and freely pardon-conscence. ing all offences against them, in as full a manner as if each individual had been named. He declared also his will and pleasure that the oaths of supremacy and allegiance, and the several tests enjoined by statutes of the late reign, should no longer be required of any one before his admission to offices of trust. The motive of this declaration was not so much to relieve the Roman catholics from penal and incapacitating statutes (which, since the king’s accession and the judgment of the court of king’s bench in favor of Hales, were virtually at an end), as, by extending to the protestant dissenters the same full measure of toleration, to enlist under the standard of arbitrary power those who had been its most intrepid and steadiest adversaries. It was after the prorogation of parliament that he had begun to caress that party, who in the first months of his reign had endured a continuance of their persecution.2 But the clergy in general detested the nonconformists hardly less than the papists, and had always abhorred the idea of even a parliamentary toleration. The present 1 Sunderland does not appear, by the nate for its money. Mazure, 372; Dalextracts from Barillon’s letters published rymple, 270, et post. Louis only gave ny M.

Mazure, to have been the adviser him half what he demanded. Without of the king’s most injudicious measures. the blindest submission to the king, he He was united with the queen, who had was every moment falling; and this drove more moderation than her husband. It him into a step as injudicious as it was is said by Barillon that both he and unprincipled, his pretended change of Petre were against the prosecution of religion, which was not publicly made the bishops: ii. 448. The king himself till June, 1688, though he had been.ascribes this step to Jefferies, and seems privately reconciled, it is said (Mazure, to glance also at Sunderland as its ad-ii. 463), more than a year before by viser. Life of James, ii. 156. Ie speaks father Petre. more explicitly as to Jefferies in Mac-2 ” This defection of those his tL ajesty pherson’s Extracts, 151. Yet lord Clar-had hitherto put the greatest confidence endon’s Diary, ii. 49, tends to acquit in [Clarendon and Rochester], andi the Jefferies. Probably the king had nobody sullen disposition of the church of Engto blame but himself.

One cause of land party in general. made him think it Sunderland’s continuance in the appar-necessary to reconcile another; and yet ent support of a policy which he knew to he hoped to do it in such a manner as be destructive was his poverty. He was not to disgust quite the churchman in the pay of France, and even importu-neither.” Life of James, ii. 102.

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76 ADDRESSES IN FAVOR OF CHAP. XIV. declaration went much farther than the recognized prerogative of dispensing with prohibitory statutes. Instead of removing the disability from individuals by letters patent, it swept away at once, in effect, the solemn ordinances of the legislature. There was, indeed, a reference to the future concurrence of the two houses, whenever he should think it convenient for them to meet; but so expressed as rather to insult, than pay respect to, their authority.l And no one could help considering the declaration of a similar nature just published in Scotland as the best commentary on the present. In that he suspended all laws against the Roman catholics and moderate presbyterians, “by his sovereign authority, prerogative royal, and absolute power, which all his subjects were to obey without reserve;” and its whole tenor spoke, in as unequivocal language as his grandfather was accustomed to use, his contempt of all pretended limitations on his will.2 Though the constitution of Scotland was not so well balanced as our own, it was notorious that the crown did not legally possess an absolute power in that kingdom; and men might conclude that, when he should think it less necessary to observe some measures with his English subjects, he would address them in the same strain. Those, indeed, who knew by what course his favor was to Addresses in be sought, did not hesitate to go before and light favor of it. him, as it were, to the altar on which their country’s liberty was to be the victim. Many of the addresses which fill the columns of the London Gazette in 1687, on occasion of the declaration of indulgence, flatter the king with assertions of his dispensing power. The benchers and barristers of the Middle Temple, under the direction of the prostitute Shower, were again foremost in the race of infamy.8 They thank him “for asserting his own royal prerogatives, the very life of the law, and of their profession; which prerogatives, as they were given by God himself, so no power upon earth could diminish them, but they must always remain entire and inseparable from his royal person; which preroga1 London Gazette, March 18, 1687. either. The former, eminent above Ralph, 945.

others for fulsome servility, is tradi2 Ralph, 943. Mazure, ii. 207.

tionally said to be the clandestine pro3 [But these addresses from the Middle duction of three of the benchers, of and Inner Temple, we are informed by whom Chauncy, the historian of Hertsir James Mackintosh, “from recent ex-fordshire, was one.” Hist. of James II. amination of the records of those bodies, p. 177.] do not appear to have been voted by

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JAMES II. DECLARATION OF INDULGENCE. 77 tives, as the addressers had studied to know, so they were resolved to defend by asserting with their lives and fortunes that divine maxim, a Deo rex, a rege lex.”’ These addresses, which, to the number of some hundreds, were sent up from every description of persons, the clergy, ~the nonconformists of all denominations, the grand juries, the justices of the peace, the corporations, the inhabitants of towns, in consequence of the declaration, afford a singular contrast to what we know of the prevailing dispositions of the people in that year, and of their general abandonment of the king’s cause before the end of the next. Those from the clergy, indeed, disclose their ill-humor at the unconstitutional indulgence, limiting their thanks to some promises of favor the king had made towards the established church. But as to the rest, we should have cause to blush for the servile hypocrisy of our ancestors, if there were not good reason to believe that these addresses were sometimes the work of a small minority in the name of the rest, and that the grand juries and the magistracy in general had been so garbled for the king’s purposes in this year that they formed a very inadequate representation of that great class from which they ought to have been taken.2 It was however very natural that they should deceive the court. The catholics were eager for that security which nothing but an act of the legislature could afford; and James, who, as well as his minister, had a strong aversion to the measure, seems about the latter end of the summer of 1687 to have made a sudden change in his scheme of government, and resolved once more to try the disposition of a parliament. For this purpose, having dissolved that from which he could expect I London Gazette, June 9, 1687. instantaneously as parasites on the stage Shower had been knighted a little be-desert their patron on the first tidings of fore, on presenting, as recorder of Lon-his ruin. dol. an address from the grand jury of The dissenters have been a litth Dildlesex, thanking the king for his, ashamed of their compliance with the declaration. Id. May 12. declaration, and of their silence in the 2 London Gazette of 1687 and 1688, popish controversy during this reign. passim. Ralph, 946, 368. These ad-Neal, 755, 768; and see Biog. Brit., art. dresses grew more ardent after the ALSOP. The best excuses are, that they queen’s pregnancy became known. They had been so harassed that it was not in were renewed, of course, after the birth human nature to refuse a mitigation of of the prince of Wales. But scarce any suffering almost on any terms; that they appear after the expected invasion was were by no means unanimous in their announced. The tories (to whom add transitory support of’the court; and that the dissenters) seem to have thrown off they gladly embraced the first offers of the mask at once, and deserted the king, an equal indulgence held out to them by whom they had so grossly flattered, as the church.

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78 CORPORATIONS REMODELLED. CHAP. XIV. nothing hostile to the church, he set himself to manage the election of another in such a manner as to insure his main object, the security of the Romish religion.’ “His first care,” says his biographer Innes, ” was to New-model- purge the corporations from that leaven which ling of the was in danger of corrupting the whole kingdom;, orporations. so he appointed certain regulators to inspect the conduct of several borough towns. to correct abuses where it was practicable, and where not, by forfeiting their charters, to tnrn out such rotten members as infected the rest. But in this, as in most other cases, the king had the fortune to choose persons not too well qualified for such an employment, and extremely disagreeable to the people; it was a sort of motley council made up of catholics and presbyterians, a composition which was sure never to hold long together, or that could probably unite in any method suitable to both their interests; it served therefore only to increase the public odium by their too arbitrary ways of turning out and putting in; and yet those who were thus intruded, as it were, by force, being of the presbyterian party, were by this time become as little inclinable to favor the king’s intentions as the excluded members.” 2 This endeavor to violate the legal rights of electors, as well as to take away other vested franchises, by new-modelling corporations through commissions granted to regulators, was the most capital delinquency of the king’s government; because it tended to preclude any reparation for the rest, and directly attacked the fundamental constitution of the state.8 But, like all his other measures, it displayed not more illwill to the liberties of the nation than inability to overthrow them. The catholics were so small a body, and so weak, especially in corporate towns, that the whole effect produced 1 l”

The king, now finding that nothing create new peers enough to insure the which had the least appearance of nov-repeal of the test; Mazure, iii.

81; but elty, though never so well warranted by intimates in his proclamation that he the prerogative, would go down with the would consent to let Roman catholics people unless it had the parliamentary remain incapable of sitting in the lower stamp on it, resolved to try if he could house. Id. 82; Ralph, 1010. But this get the penal laws and test taken off by very proclamation was revoked in a few that authority.” Life of James, ii. 134. days.] But it seems, by M. Mazure’s authorities, 2 Life of James, p. 139. that neither the king nor lord Sunder-3 Ralph, 965, 966. The object was to land wished to convoke a parliament, let in the dissenters.

This was evidently which was pressed forward by the eager a desperate game: James had ever morcatholics: ii. 399, iii. 65. [The procla-tally hated the sectaries as enemies to mation for a new parliament came out monarchy; and they were irreconcilably Sept. 21, 1688. The king intended to adverse to all his schemes.

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JAMES II. EFFECTS OF THE “REGULATION.” 79 by the regulators was to place municipal power and trust in the hands of the nonconformists, those precarious and unfaithful allies of the court, whose resentment of past oppression, hereditary attachment to popular principles of government, and inveterate abhorrence of popery, were not to be effaced by an unnatural coalition. Hence, though they availed themselves, and surely without reproach, of the toleration held out to them, and even took the benefit of the scheme of regulation, so as to fill the corporation of London and many others, they were, as is confessed above, too much of Englishmen and protestants for the purposes of the court. The wiser part of the churchmen made secret overtures to their party; and by assurances of a toleration, if not also of a comprehension within the Anglican pale, won them over to a hearty concurrence in the great project that was on foot.’ The king found it necessary to descend so much from the haughty attitude he had taken at the outset of his reign, as personally to solicit men of rank and local influence for their votes on the two great measures of repealing the test and penal laws. The country gentlemen, in their different counties, were tried with circular questions, whether they would comply with the king in their elections, or, if themselves chosen, in parliament. Those who refused such a promise were erased fiom the lists of justices and deputy-lieutenants.2 Yet his biographer admits that he received little encouragement to proceed in the experiment of a parliament; and it is said by the French ambassador that evasive answers were returned to these questions, with such uniformity of expression as indicated an alarming degree of concert.4 It is unnecessary to dwell on circumstances so Affair of well known as the expulsion of the fellows of IMa-Mlagdalen dalen College.5 It was less extensively mischiev-Colege. 1 Burnet;Life of James, 169; D’Oyly’s necessary for that purpose. And thus Life of Sancroft, i. 326. Lord Halifax, as stands the state of this nation in this is supposed, published a letter of advice month of September, 1688.” P.

84. Noto the dissenters, warning them against a tice is given in the London Gazette for coalition with the court, and promising December 11,1687, that the lists of jusall indulgence from the church. Ralph, tices and deputy-lieutenants would be 950; Somers Tracts, viii. 50. revised. 2

Ralph, 967; Lonsdale, p. 15. ” It is 3 Life of James, 183. to be observed,” says the author of this 4 Mazure. ii. 302. memoir, ” that most part of the offices in 6 The reader will find almost everythe nation, as justices of the peace, dething relative to the subject in that inputy-lioutenants, mayors, aldermen, and comparable repertory, the State Trials freemen of towns, are filled with Roman xii. 1; also some notes in the Oxfora catholics and dissenters, after having edition of Burnet.

suffered as many regulations as were

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80 FELLOWS OF MAGDALEN EXPELLED. CHAP. XIV. ous than the new-modelling of corporations, but perhaps a more glaring act of despotism. For though the crown had been accustomed from the time of the Reformation to send very peremptory commands to ecclesiastical foundations, and even to dispense with their statutes at discretion, with so little resistance that few seemed to doubt of its prerogative; though Elizabeth would probably have treated the fellows of any college much in the same manner as James II., if they had proceeded to an election in defiance of her recommendation; yet the right was not the less clearly theirs, and the struggles of a century would have been thrown away, if James II. was to govern as the Tudors, or even as his father and grandfather, had done before him.l And though Parker, bishop of Oxford, the first president whom the ecclesiastical commissioners obtruded on the college, was still nominally a protestant,2 his successor Giffard was an avowed member of the church of Rome. The college was filled with persons of the same persuasion; mass was said in the chapel, and the established religion was excluded with a degree of open force which entirely took away all security for its preservation in any other place. This latter act, especially, of the Magdalen drama, in a still greater degree than the nomination of Massey to the deanery of Christ Church, seems a decisive proof that the king’s repeated promises of contenting himself with a toleration of his own religion would have yielded to his insuperable bigotry and the zeal of his confessor. We may perhaps add to these encroachments upon the act of uniformity, the design imputed to him of conferring the archbishopric of York on father Petre; yet there would have been difficulties that seem insurmountable in the way of this, since, the validity of Anglican orders not being acknowledged by the church of Rome, Petre would not have sought consecration at the hands of Sancroft; nor, had he done so, would the latter have conferred it on him, even if the chapter of 1 [This is the only ground to be taken that ” the legislative power in matters in the great case of Magdalen College, as ecclesiastical was lodged in the king, and in that of Francis, at Cambridge, a little too ample to be limited by act of parliaearlier; for the precedents of dispensing ment.” Id.

971.-1845.] with college statutes by the royal author-2 Parker’s Reasons for Abrogating the ity were numerous. See Ralph, 958. But Test are written in such a tone as to it is one thing to do an irregular act, and make his readiness to abandon the protanother to enforce it. A vindication of estant side very manifest, even if the the proceedings of the ecclesiastical cor-common anecdotes of him should be ex mission was published, wherein it is said aggerated.

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JAMES II. INFATUATION OF THE KING. 81 York had gone through the indispensable form of an election.1 The infatuated monarch was irritated by that which he should have taken as a terrible warning, this re-Infatuation sistance to his will from the university of Oxford. of the king. That sanctuary of pure unspotted loyalty, as some would say, - that sink of all that was most abject in servility, as less courtly tongues might murmur, - the university of Oxford, which had but four short years back, by a solemn decree in convocation, poured forth anathemas on all who had doubted the divine right of monarchy, or asserted the privileges of subjects against their sovereigns, which had boasted in its addresses of an obedience without any restrictions or limitations, which but recently had seen a known convert to popery, and a person disqualified in other ways, installed by the chapter without any remonstrance in the deanery of Christ Church, was now the scene of a firm though temperate opposition to the king’s positive command, and soon after the willing instrument of his ruin. In vain the pamphleteers, on the side of the court, upbraided the clergy with their apostasy from the principles they had so much vaunted.

The imputation it was hard to repel; but, if they could not retract their course without shame, they could not continue in it without destruction.2

They were driven to extremity by the order of May 4, 1688, to read the declaration of indulgence in their churches.3 This, as is well known, met with great resistance, and, by inducing the primate and six other bishops to present a petition to the king against it, brought on that famous prosecution, which, more perhaps than all his former actions, cost him the allegiance of the Anglican church. The proceedings upon the trial of those prelates are so familiar as 1 It seems, however, confirmed by nobility, gentry, and commonalty, our Mazure, ii. 390, with the addition that clergy have been publishing to the world Petre, like a second Wolsey, aspired also that the king can do greater things than to be chancellor. The pope, however, are done in his declaration; but now the would not make him a bishop, against scene is altered, and they are become the rules of the order of Jesuits, to which more concerned to maintain their reputahe belonged. Id. 241. James then tried, tion even with the commonalty than through lord Castelmain, to get him a with the king.” See also in the same cardinal’s hat, but with as little sue-volume, p. 19, “A remonstrance from the cess. church of England to both houses of par2 ” Above twenty years together,” says liament,” 1685; and p. 145, ” A new test sir Roger l’Estrange, perhaps himself a of the church of England’s loyalty;” both, disguised catholic, in his reply to the rea-especially the latter, bitterly reproaching sons of the clergy of the diocese of Ox-her members for their apostasy frum ford against petitioning (Somers Tracts, former professions.. viii. 45), “without any regard to the 3 Ralph, 982. VOL. II.

6

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82 TRIAL OF THE BISHOPS. CHAP. XIV. to require no particular notice.1 What is most worthy of remark is, that the very party who had most extolled the royal prerogative, and often in such terms as if all limitations of it were only to subsist at pleasure, became now the instruments of bringing it down within the compass and control of the law. If the king had a right to suspend the execution of statutes by proclamation, the bishops’

petition might not indeed be libellous, but their disobedience and that of the clergy could not be warranted; and the principal argument both of the bar and the bench rested on the great question of that prerogative. The king, meantime, was blindly hurrying on at the instigation of his own pride and bigotry, and of some ignorant priests; confident in the fancied obedience of the church, and in the hollow support of the dissenters, after all his wiser counsellors, the catholic peers, the nuncio, perhaps the queen herself, had grown sensible of the danger, and solicitous for temporizing measures. He had good reason to perceive that neither the fleet nor the army could be relied upon; to cashier the most rigidly protestant officers, to draft Irish troops into the regiments, to place all important commands in the hands of catholics, were difficult and even desperate measures, which rendered his designs more notorious, without rendering them more feasible. It is among the most astonishing parts of this unhappy sovereign’s impolicy, that he sometimes neglected, even offended, never steadily and sufficiently courted, the sole ally that could by possibility have cooperated in his scheme of government. In his brother’s reign James had been the most obsequious and unhesitating servant of the French king. Before his own accession, his first step was to implore, through Barillon, a continuance of that support and protection, without which he could undertake nothing which he had designed in favor of the catholics. He received a present of 500,000 livres with tears of gratitude; and telling the ambassador he had not disclosed his real designs to his ministers, pressed for a strict alliance with Louis, as the means of accomplishing them.2 Yet, with a strange inconsistency, he drew off gradually from these professions, and not only kept on rather cool terms with France during part of his reign, but sometimes played a double game by treating of a league with Spain. 1 See State Trials, xii.

183. D’Oyly’s 2 Fox, App. 29; Dalrymple, 107; MaLife of Sancroft, i. 250.

zure. i. 396, 433.

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JAMES II. JAMES’S COLDNESS TO THE FRENCH KING. 83 The secret of this uncertain policy, which has not been well known till very lately, is to be found in the king’s character. James had a real sense of the coldness dignity pertaining to a king of England, and much towards of the national pride as well as that of his rank. Lou He felt the degradation of importuning an equal sovereign for money, which Louis gave less frequently and in smaller measure than it was demanded. It is natural for a proud man not to love those before whom he has abased himself. James, of frugal habits, and master of a great revenue, soon became more indifferent to a French pension. Nor was he insensible to the reproach of Europe, that he was grown the vassal of France and had tarnished the lustre of the English crown.1 Had he been himself protestant, or his subjects catholic, he would probably have given the reins to that jealousy of his ambitious neighbor, which, even in his peculiar circumstances, restrained him from the most expedient course; I mean expedient, on the hypothesis that to overthrow the civil and religious institutions of his people was to be the main object of his reign. For it was idle to attempt this without the steady cooperation of France; and those sentiments of dignity and independence, which at first sight appear to do him honor, being without any consistent magnanimity of character, served only to accelerate his ruin, and confirm the persuasion of his incapacity.2 Even in the mem1 Several proofs of this occur in the that James made so few applications for course of M. Mazure’s work. When the his aid. His hope seems to have been Dutch ambassador, Van Citers, showed that by means of French troops, or troops him a paper, probably forged to exas-at least in his pay, he should get a footperate him, but purporting to be written ing in England; and this was what the by some catholics, wherein it was said other was too proud and jealous to perthat it would be better for the people to mit. ” Comme le roi,” he said, in 1687, be vassals of France than slaves of the “ne doute pas de mon affection et du devil, he burst out into rage. ”’ Jamais! d6sir que j’ai de voir la religion cathonon, jamais! je ne ferai rien qui me lique bien stablie en Angleterre, il faut puisse mettre au-dessous des rois de croire qu’il se trouve assez de force et France et d’Espagne. Vassal!

vassal de d’autorite pour executer ses desseins, la France!’ s’ecria-t-il avec emportement. puisqu’il n’a pas recours & moi.” P. 258;‘Monsieur si le parlement avoit voulu, also 174, 225, 320. sil vouloit encore, j’aurois porte, je por-2 James affected the same ceremonial terois encore la monarchie & un degre de as the king of France, and received the consideration qu’elle n’a jamais eu sous latter’s ambassador sitting and covered. aucun des rois mes predecesseurs, et votre Louis only said, smiling,’ Le roi mon 6tat y trouveroit peut-8tre sa propre frere est fier, mais il aime assez les pissecurit.’ ” Vol. ii. 165. Sunderland said toles de France.” Mazure, i. 423. A more to Barillon, “Le roi d’Angleterre se re-extraordinary trait of James’s pride is proche de ne pas etre en Europe tout ce mentioned by Dangeau, whom I quote quWil devoit etre; et souvent il se plaint from the Quarterly Review, xix. 470. que le roi votre maitre n’a pas pour lui After his retirement to St. Germains he assez de consideration.” Id. 313. On the wore violet in court mourning, which, other hand, Louis was much mortified by etiquette, was confined to the kings

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84 JAMES’S JEALOUSY OF LOUIS. CHAP. XIV. orable year 1688, though the veil was at length torn from his eyes on the verge of the precipice, and he sought in trembling the assistance he had slighted, his silly pride made him half unwilling to be rescued; and, when the French ambassador at the Hague, by a bold manoeuvre of diplomacy, asserted to the States that an alliance already subsisted between his master and the king of England, the latter took offence at the unauthorized declaration, and complained privately that Louis treated him as an inferior.1 It is probable that a more ingenuous policy in the court of Whitehall, by determining the king of France to declare war sooner on Holland, would have prevented the expedition of the prince of Orange.2 The latter continued to receive strong assurances of attachment from men of rank in England; but wanted that direct invitation to enter the kingdom with force which he required both for his security and his justification. No men who thought much about their country’s interests or their own would be hasty in venturing on so awful an enterprise. The punishment and ignominy of treason, the reproach of history, too often the sworn slave of fortune, awaited its failure.

Thus Halifax and Nottingham found their conscience or their courage unequal to the crisis, and drew back from the hardy conspiracy that produced the revolution.s Nor, perhaps, of France. The courtiers were a little Louis, Sept. 13, by which some French astonished to see solem geminum, though ships were to be under the former’s not at a loss where to worship. Louis, orders. Mazure, iii. 67. of course, had too much magnanimity to 2 Louis continued to find money, express resentment. But what a picture though despising James, and disgusted of littleness of spirit does this exhibit in with him, probably with a view to his a wretched pauper, who could only escape own grand interests. He should never. by the most contemptible insignificance theless have declared war against Hol. the charge of most ungrateful insolence! land in October, which must have put a I Mazure, iii. 50. James was so much stop to the armament. But he had disout of humor at D’Avaux’s interference covered that James, with extreme meanthat he asked his confidants ” if the king ness, had privately offered about the end of France thought he could treat him of September to join the alliance against like the cardinal of Furstenburg,” a creat-him as the only resource. This wretched ure of Louis XIV. whom he had set up action is first brought to light by M. Mafor the electorate of Cologne. Id. 69. zure, iii. 104. He excused himself to the He was, in short, so much displeased with king of France by an assurance that he his own ambassador at the Hague, Skel-was not acting sincerely towards Holland. ton, for giving in to this declaration of Louis, though he gave up his intention D’Avaux, that he not only recalled, but of declaring war, behaved with great sent him to the Tower. Burnet is there-magnanimity and compassion towards fore mistaken, p. 768, in believing that the falling bigot. there was actually an alliance, though it 3 Halifax all along discouraged the inwas very natural that he should give vasion, pointing out that the king made credit to what an ambassador asserted in no progress in his schemes. Dalrymple, a matter of such importance. In fact, a passim. Nottingham said he would keep treaty was signed between Jamea and the secret, but could not be a party to a

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JAMES H. BIRTH OF PRINCE OF WALES. 85 would the seven eminent persons, whose names are subscribed to the invitation addressed on the 30th of June, 1688, to the Prince of Orange, the earls of signed to Danby, Shrewsbury, and Devonshire, lord Lumley, the prince of the bishop of London, Mr. Henry Sidney, and admi-range ral Russell, have committed themselves so far, if the recent birth of a prince of Wales had not made some Birthofthe measures of force absolutely necessary for the prince of common interests of the nation and the prince of Wales. Orange.1 It cannot be said without absurdity that James was guilty of any offence in becoming father of this child; yet it was evidently that which rendered his other offences inexpiable. He was now considerably advanced in life; and the decided resistance of his subjects made it improbable that he could do much essential injury to the established constitution during the remainder of it. The mere certainty of all reverting to a protestant heir would be an effectual guarantee of the Anglican church. But the birth of a son to be nursed in the obnoxious bigotry of Rome, the prospect of a regency under the queen, so deeply implicated, according to common report, in the schemes of this reign, made every danger appear more terrible. From the moment that the queen’s pregnancy was announced, the catholics gave way to enthusiastic unrepressed exultation; and, by the confidence with which they prophesied the birth of an heir, furnished a pretext for the suspicions which a disappointed people began to entertain.2 These suspicions were very general: they extended to the highest ranks, and are a conspicuous instance of that prejudice which is chiefly founded on our wishes. Lord Danby, in a letter to William, of March 27, insinuates his doubt of the queen’s pregnancy. After the child’s birth, the seven subscribers to the association inviting the prince to come over, and pledging themselves to join him, say that not one in a thousand believe it to be the queen’s; lord Devonshire separately held language to the same effect.3 The treasonable undertaking (id. 228; Bur-follow that it would have been despatched net, 764), and wrote as late as July to if the queen had borne a daughter, nor advise delay and caution. Notwithstand-do I think that it should have been. ing the splendid success of the opposite 2

Ralph, 980; Mazure, ii. 867. counsels, it would be judging too servile-3

Dalrymple, 216, 228. The prince:y by the event not to admit that they was urged in the memorial of the seven were tremendously hazardous. to declare the fraud of the queen’s preg1 The invitation to William seems to nancy to be one of the grounds of his have been in debate some time before the expedition. He did this: and it is the prince of Wales’s birth; but it does not only part of his declaration that is false.

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86 JUSTICE AND NECESSITY CHAP. XIV. princess Anne talked with little restraint of her suspicions, and made no scruple of imparting them to her sister.1 Though no one can hesitate at present to acknowledge that the prince of Wales’s legitimacy is out of all question, there was enough to raise a reasonable apprehension in the presumptive heir, that a party not really very scrupulous, and through religious animosity supposed to be still less so, had been induced by the undoubted prospect of advantage to draw the king, who had been wholly their slave, into one of those frauds which bigotry might call pious.2 The great event, however, of what has been emphatically denominated in the language of our public acts the Glorious Revolution stands in need of no vulgar credulity, necessity of no mistaken prejudice, for its support. It can only the Revolu-rest on the basis of a liberal theory of government, i which looks to the public good as the great end for which positive laws and the constitutional order of states have been instituted. It cannot be defended without rejecting the slavish principles of absolute obedience, or even that pretended modification of them which imagines some extreme case of intolerable tyranny, some, as it were, lunacy of despotism, as the only plea and palliation of resistance. Doubtless the administration of James II. was not of this nature. Doubtless he was not a Caligula, or a Commodus, or an Ezzelin, or a Galeazzo Sforza, or a Christiern II. of Denmark, or a Charles IX. of France, or one of those almost innumerable tyrants whom men have endured in the wantonness of unlimited power. No man had been deprived of his liberty by any illegal warrant. No man, except in the single though very important instance of Magdalen College, had been despoiled of his property. I must also add that the government of James II. will lose little by comparison with that of his father. The judgment in favor of his prerogative to dispense with the test was far more according to received notions of 1 State Trials, xii. 161. Mary put Earl of Clarendon’s Diary, 77, 79. State some very sensible questions to her Trials, ubi supra. sister, which show her desire of reaching 2 M. Mazure has collected all the pasthe truth in so important a matter. sages in the letters of Barillon and BonThey were answered in a style which repos to the court of France relative to shows that Anne did not mean to lessen the queen’s pregnancy, ii. 366, and those her sister’s suspicions. Dalrymple, 30-5. relative to the birth of the prince of Her conversation with lord Clarendon on Wales, p. 547. It is to be observed that this subject, after the depositions had this took place more than a month before been taken, is a proof that she had made the time expected. up her mind not to be convinced. Henry

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JAMES IT. OF THE REVOLUTION. 87 law, far less injurious and unconstitutional, than that which gave a sanction to ship-money. The injunction to read the declaration of indulgence in churches was less offensive to scrupulous men than the similar command to read the declaration of Sunday sports in the time of Charles I. Nor was any one punished for a refusal to comply with the one; while the prisons had been filled with those who had disobeyed the other. Nay, what is more, there are much stronger presumptions of the father’s than of the son’s intention to lay aside parliaments, and set up an avowed despotism. It is indeed amusing to observe that many who scarcely put bounds to their eulogies of Charles I. have been content to abandon the cause of one who had no faults in his public conduct but such as seemed to have come by inheritance. The characters of the father and son were very closely similar; both proud of their judgment as well as their station, and still more obstinate in their understanding than in their purpose; both scrupulously conscientious in certain great points of conduct, to the sacrifice of that power which they had preferred to everything else; the one far superior in relish for the arts and for polite letters, the other more diligent and indefatigable in business; the father exempt from those vices of a court to which the son was too long addicted; not so harsh, perhaps, or prone to severity in his temper, but inferior in general sincerity and adherence to his word. They were both equally unfitted for the condition in which they were meant to stand -the limited kings of a wise and free people, the chiefs of the English commonwealth. The most plausible argument against the necessity of so violent a remedy for public grievances as the abjuration of allegiance to a reigning sovereign was one that misled half the nation in that age, and is still sometimes insinuated by those whose pity for the misfortunes of the house of Stuart appears to predominate over every other sentiment which the history of the revolution should excite. It was alleged that the constitutional mode of address by parliament was not taken away; that the king’s attempts to obtain promises of support from the electors and probable representatives showed his intention of calling one; that the writs were in fact ordered before the prince of Orange’s expedition; that after the invader had reached London, James still offered to refer the terms of reconciliation with his people to a free parliament, though he could have no hope of evading any that

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88 JUSTICE AND NECESSITY CHAP. XIV. might be proposed; that by reversing illegal judgments, by annulling unconstitutional dispensations, by reinstating those who had been unjustly dispossessed, by punishing wicked advisers, above all, by passing statutes to restrain the excesses and cut off the dangerous prerogatives of the monarchy (as efficacious, or more so, than the bill of rights and other measures that followed the revolution), all risk of arbitrary power, or of injury to the established religion, might have been prevented, without a violation of that hereditary right which was as fundamental in the constitution as any of the subject’s privileges. It was not necessary to enter upon the delicate problem of absolute non-resistance, or to deny that the conservation of the whole was paramount to all positive laws. The question to be proved was, that a regard. to this general safety exacted the means employed in the revolution, and constituted that extremity which could alone justify such a deviation from the standard rules of law and religion. It is evidently true that James had made very little progress, or rather experienced a signal defeat, in his endeavor to place the professors of his own religion on a firm and honorable basis. There seems the strongest reason to believe that, far from reaching his end through the new parliament, he would have experienced those warm assaults on the administration which generally distinguished the house of commons under his father and brother. But, as he was in no want of money, and had not the temper to endure what he thought the language of republican faction, we may be equally sure that a short and angry session would have ended with a more decided resolution on his side to govern in future without such impracticable counsellors. The doctrine imputed of old to lord Strafford, that, after trying the goodwill of parliament in vain, a king was absolved from the legal maxims of government, was always at the heart of the Stuarts. His army was numerous, according at least to English notions; he had already begun to fill it with popish officers and soldiers; the militia, though less to be depended on, was under the command of lord and deputy lieutenants carefully selected; above all, he would at the last have recourse to France; and though the experiment of bringing over French troops was very hazardous, it is difficult to say that he might not have succeeded, with all these means, in preventing or putting down any concerted insurrection.

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JAMES II. OF THE REVOLUTION. 89 But at least the renewal of civil bloodshed and the anarchy of rebellion seemed to be the alternative of slavery, it William had never earned the just title of our deliverer. It is still more evident that, after the invasion had taken place, and a general defection had exhibited the king’s inability to resist, there could have been no such compromise as the tories fondly expected, no legal and peaceable settlement in what they called a free parliament, leaving James in the real and recognized possession of his constitutional prerogatives. Those who have grudged William III. the laurels thathe won for our service are ever prone to insinuate that his unnatural ambition would be content with nothing less than the crown, instead of returning to his country after he had convinced the king of the error of his counsels, and obtained securities for the religion and liberties of England. The hazard of the enterprise, and most hazardous it truly was, was to have been his; the profit and advantage our own. I do not know that William absolutely expected to place himself on the throne; because he could hardly anticipate that James would so precipitately abandon a kingdom wherein he was acknowledged, and had still many adherents. But undoubtedly he must, in consistency with his magnanimous designs, have determined to place England in its natural station, as a party in the great alliance against the power of Louis XIV. To this one object of securing the liberties of Europe, and chiefly of his own country, the whole of his heroic life was directed with undeviating, undisheartened firmness. He had in view no distant prospect, when the entire succession of the Spanish monarchy would be claimed by that insatiable prince, whose renunciation at the treaty of the Pyrenees was already maintained to be invalid. Against the present aggressions and future schemes of this neighbor the league of Augsburg had just been concluded. England, a free, a protestant, a maritime kingdom, would, in her natural position, as a rival of France, and deeply concerned in the independence of the Netherlands, become a leading member of this confederacy. But the sinister attachments of the house of Stuart had long diverted her from her true interests, and rendered her councils disgracefully and treacherously subservient to those of Louis. It was therefore the main object of the prince of Orange to strengthen the alliance by the vigorous cooperation of this kingdom; and

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90 JUSTICE OF THE REVOLUTION. CHAP. XIV. with no other view, the emperor, and even the pope, had abetted his undertaking. But it was impossible to imagine that James would have come with sincerity into measures so repugnant to his predilections and interests. What better could be expected than a recurrence of that false and hollow system which had betrayed Europe and dishonored England under Charles II.; or rather, would not the sense of injury and thraldom have inspired still more deadly aversion to the cause of those to whom he must have ascribed his humiliation? There was as little reason to hope that he would abandon the long-cherished schemes of arbitrary power, and the sacred interests of his own faith. We must remember that, when the adherents or apologists of James II. have spoken of him as an unfortunately misguided prince, they have insinuated what neither the notorious history of those times, nor the more secret information since brought to light, will in any degree confirm. It was indeed a strange excuse for a king of such mature years, and so trained in the most diligent attention to business. That in some particular instances he acted under the influence of his confessor, Petre, is not unlikely; but the general temper of his administration, his notions of government, the objects he had in view, were perfectly his own, and were pursued rather in spite of much dissuasion and many warnings than through the suggestions of any treacherous counsellors. Both with respect therefore to the prince of Orange and to the English nation, James II. was to be considered as an enemy whose resentment could never be appeased, and whose power consequently must be wholly taken away. It is true that, if he had remained in England, it would have been extremely difficult to deprive him of the nominal sovereignty. But in this case, the prince of Orange must have been invested, by some course or other, with all its real attributes. He undoubtedly intended to remain in this country; and could not otherwise have preserved that entire ascendency which was necessary for his ultimate purposes. The king could not have been permitted, with any common prudence, to retain the choice of his ministers, or the command of his army, or his negative voice in laws, or even his personal liberty; by which I mean that his guards must have been either Dutch, or at least appointed by the prince and parliairent. Less than this it would have been childish to require;

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JAMES II. CIRCUMSTANCES FAVORING REVOLUTION. 91 and this would not have been endured by any man even of James’s spirit, or by the nation when the reaction of loyalty should return, without continued efforts to get rid of an arrangement far more revolutionary and subversive of the established monarchy than the king’s deposition. In the Revolution of 1688 there was an unusual combination of favoring circumstances, and some of the ravorable most important, such as the king’s sudden flight, circum-.~. i-L..I I [i V- . * T -. stances atnot within prior calculation, which renders it no tending the precedent for other times and occasions in point Revolution. of expediency, whatever it may be in point of justice.

Resistance to tyranny by overt rebellion incurs not only the risks of failure, but those of national impoverishment and confusion, of vindictive retaliation, and such aggressions (perhaps inevitable) on private right and liberty as render the name of revolution and its adherents odious.

Those, on the other hand, who call in a powerful neighbor to protect them from domestic oppression, may too often expect to realize the horse of the fable, and endure a subjection more severe, permanent, and ignominious, than what they shake off. But the revolution effected by William III.

united the independent character of a national act with the regularity and the coercion of anarchy which belong to a military invasion. The United Provinces were not such a foreign potentate as could put in jeopardy the independence of England; nor could his army have maintained itself against the inclinations of the kingdom, though it was sufficient to repress any turbulence that would naturally attend so extraordinary a crisis. Nothing was done by the multitude; no new men, either soldiers or demagogues, had their talents brought forward by this rapid and pacific revolution; it cost no blood, it violated no right, it was hardly to be traced in the course of justice; the formal and exterior character of the monarchy remained nearly the same in so complete a regeneration of its spirit. Few nations can hope to ascend up to the sphere of a just and honorable liberty, especially when long use has made the track of obedience familiar, and they have learned to move as it were only by the clank of the chain, with so little toil and hardship. We reason too exclusively from this peculiar instance of 1688 when we hail the fearful struggles of other revolutions with a sanguine and confident sympathy. Nor is the only error upon this side. For, as if the invet

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92 FAVORABLE CIRCUMSTANCES CHAP. XIV. erate and cankerous ills of a commonwealth could be extirpated with no loss and suffering, we are often prone to abandon the popular cause in agitated nations with as much fickleness as we embraced it, when we find that intemperance, irregularity, and confusion, from which great revolutions are very seldom exempt. These are indeed so much their usual attendants, the reaction of a self-deceived multitude is so probable a consequence, the general prospect of success in most cases so precarious, that wise and good men are more likely to hesitate too long than to rush forward too eagerly. Yet, “whatever be the cost of this noble liberty, we must be content to pay it to Heaven.” 1 It is unnecessary even to mention those circumstances of this great event which are minutely known to almost all my readers. They were all eminently favorable in their effect to the regeneration of our constitution; even one of temporary inconvenience, namely, the return of James to London, after his detention by the fishermen near Feversham.

This, as Burnet has observed, and as is easily demonstrated by the writings of that time, gave a different color to the state of affairs, and raised up a party which did not before exist, or at least was too disheartened to show itself.2 His first desertion of the kingdom had disgusted every one, and might be construed into a voluntary cession. But his return to assume again the government put William under the necessity of using that intimidation which awakened the mistaken sympathy of a generous people. It made his subsequent flight, though certainly not what a man of courage enough to give his better judgment free play would have chosen, 1 Montesquieu. pitying James, if this feeling is kept un2 Some short pamphlets, written at mingled with any blame of those who this juncture to excite sympathy for the were the instruments of his misfortune. king and disapprobation of the course It was highly expedient for the good of pursued with respect to him, are in the this country, because the revolutionSomers Collection, vol. ix. But this settlement could not otherwise be atforce put upon their sovereign first tained, to work on James’s sense of his wounded the consciences of Sancroft and deserted state by intimidation; and for the other bishops, who had hitherto done that purpose the order conveyed by three as much as in their station they well of his own subjects, perhaps with some could to ruin the king’s cause and par-rudeness of manner, to leave Whitehall, alyze his arms. Several modern writers was necessary. The drift of several achave endeavored to throw an interest counts of the Revolution that may be about James at the moment of his fall, read is to hold forth Mulgrave, Craven, either from a lurking predilection for all Arran, and Dundee to admiration, at the legitimately crowned heads, or from a expense of William and of those who notion that it becomes a generous his-achieved the great consolidation of Engtorian to excite compassion for the un-lish liberty. fortunate. There can be no objection to

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JAMES II. ATTENDING THE REVOLUTION. 93 appear excusable and defensive. It brought out too glaringly, I mean for the satisfaction of prejudiced minds, the undeniable fact, that the two houses of convention deposed and expelled their sovereign. Thus the great schism of the Jacobites, though it must otherwise have existed, gained its chief strength; and the revolution, to which at the outset a coalition of whigs and tories had conspired, became, in its final result, in the settlement of the crown upon William and Mary, almost entirely the work of the former party. But while the position of the new government was thus rendered less secure, by narrowing the basis of public opinion whereon it stood, the liberal principles of policy which the whigs had espoused became incomparably more powerful, and were necessarily involved in the continuance of the revolutionsettlement. The ministers of William III. and of the house of Brunswick had no choice but to respect and countenance the doctrines of Locke, Hoadley, and Molesworth. The assertion of passive obedience to the crown grew obnoxious to the crown itself. Our new line of sovereigns scarcely ventured to hear of their hereditary right, and dreaded the cup of flattery that was drugged with poison. This was the greatest change that affected our monarchy by the fall of the house of Stuart. The laws were not so materially altered as the spirit and sentiments of the people.

Hence those who look only at the former have been prone to underrate the magnitude of this revolution. The fundamental maxims of the constitution, both as they regard the king and the subject, may seem nearly the same; but the disposition with which they were received and interpreted was entirely different. It was in this turn of feeling, in this change, if I may so say, of the heart, far more than in any positive Its salustatutes and improvements of the law, that I con-tary consesider the Revolution to have been eminently con-quences. ducive to our freedom and prosperity.

Laws and statutes as remedial, nay, more closely limiting the prerogative than the bill of rights and act of settlement, might possibly have been obtained from James himself, as the price of his continuance on the throne, or from his family as that of their restoration to it. But what the Revolution did for us was this; it broke a spell that had charmed the nation. It cut up by the roots all that theory of indefeasible right, of par

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94 THE REVOLUTION: CHAP. XIV. amount prerogative, which had put the crown in continual opposition to the people. A contention had now subsisted for five hundred years, but particularly during the last four reigns, against the aggressions of arbitrary power. The sovereigns of this country had never patiently endured the control of parliament; nor was it natural for them to do so, whilb the two houses of parliament appeared historically, and in legal language, to derive their existence as well as privileges from the crown itself. They had at their side the pliant lawyers, who held the prerogative to be uncontrollable by statutes, a doctrine of itself destructive to any scheme of reconciliation and compromise between the king and his subjects; they had the churchmen, whose casuistry denied that the most intolerable tyranny could excuse resistance to a lawful government. These two propositions could not obtain general acceptation without rendering all national liberty precarious. It has been always reckoned among the most difficult problems in the practical science of government to combine an hereditary monarchy with security of freedom, so that neither the ambition of kings shall undermine the people’s rights, nor the jealousy of the people overturn the throne. England had already experience of both these mischiefs. And there seemed no prospect before her, but either their alternate recurrence, or a final submission to absolute power, unless by one great effort she could put the monarchy forever beneath the law, and reduce it to an integrant portion instead of the primary source and principle of the constitution. She -must reverse the favored maxim, ” A Deo rex, a rege lex;” and make the crown itself appear the creature of the law. But our ancient monarchy, strong in a possession of seven centuries, and in those high and paramount prerogatives which the consenting testimony of lawyers and the submission of parliaments had recognized, a monarchy from which the house of commons and every existing peer, though not perhaps the aristocratic order itself, derived its participation in the legislature, could not be bent to the republican theories which have been not very successfully attempted in some modern codes of constitution. It could not be held, without breaking up all the foundations of our polity, that the monarchy emanated from the parliament, or, in any historical sense, from the people. But by the Revolution, and by the

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JAMES n. ITS SALUTARY CONSEQUENCES. 95 act of settlement, the rights of the actual monarch, of the reigning family, were made to emanate from the parliament and the people. In technical language, in the grave and respectful theory of our constitution, the crown is still the fountain from which law and justice spring forth. Its prerogatives are in the main the same as under the Tudors and the Stuarts; but the right of the house of Brunswick to exercise them can only be deduced from the convention of 1688. The great advantage therefore of the Revolution, as I would explicitly affirm, consists in that which was reckoned its reproach by many, and its misfortune by more - that it broke the line of succession.

No other remedy could have been found, according to the temper and prejudices of those times, against the unceasing conspiracy of power. But when the very tenure of power was conditional, when the crown, as we may say, gave recognizances for its good behavior, when any violent and concerted aggressions on public liberty would have ruined those who could only resist an inveterate faction by the arms which liberty put in their hands, the several parts of the constitution were kept in cohesion by a tie far stronger than statutes, that of a common interest in its preservation. The attachment of James to popery, his infatuation, his obstinacy, his pusillanimity, nay even the death of the duke of Gloucester, the life of the prince of Wales, the extraordinary permanence and fidelity of his party, were all the destined means through which our present grandeur and liberty, our dignity of thinking on matters of government, have been perfected. Those liberal tenets, which at the era of the Revolution were maintained but by one denomination of English party, and rather perhaps on authority of not very good precedents in our history than of sound general reasoning, became in the course of the next generation almost equally the creed of the other, whose long exclusion from government taught them to solicit the people’s favor; and by the time that Jacobitism was extinguished had passed into received maxims of English politics. None at least would care to call them in question within the walls of parliament; nor have their opponents been of much credit in the paths of literature. Yet, as since the extinction of the house of Stuart’s pretensions, and other events of the last half-century, we have seen those exploded doctrines of indefeasible hereditary right revived

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96 PROCEEDINGS OF CONVENTION. CHAP. XIV. under another name, and some have been willing to misrepresent the transactions of the Revolution and the act of settlement as if they did not absolutely amount to a deposition of the reigning sovereign, and an election of a new dynasty by the representatives of the nation in parliament, it may be proper to state precisely the several votes, and to point out the impossibility of reconciling them to any gentler construction. The lords spiritual and temporal, to the number of about Proceedings ninety, and an assembly of all who had sat in of the con-any of king Charles’s parliaments, with the lord vention. mayor and fifty of the common council, requested the prince of Orange to take upon him the administration after the king’s second flight, and to issue writs for a convention in the usual manner.1 This was on the 26th of December; and the convention met on the 22d of January.

Their first care was to address the prince to take the administration of affairs and disposal of the revenue into his hands, in order to give a kind of parliamentary sanction to the power he already exercised. On the 28th of January the commons, after a debate in which the friends of the late king made but a faint opposition,2 came to their great vote: That king James II., having endeavored to subvert the constitution of this kingdom, by breaking the original contract between king and people, and by the advice of Jesuits and other wicked persons having violated the fundamental laws, and having withdrawn himself out of the kingdom, has abdicated the government, and that the throne is thereby 1 Parl. Hist. v.

26. The former ad-phrases might give offence to our lawyers. dress on the king’s first quitting London, Ralph, ii. 10. -1845.] signed by the peers and bishops, who met 2 [It appears by some notes of the at Guildhall, Dec.

11, did not, in express debate in the convention, published in terms, desire the prince of Orange to as-the Hardwicke Papers, ii. 401, that the sume the government, or to call a parlia-vote of abdication was carried with only ment, though it evidently tended to that three negatives. The tide ran too high result, censuring the king and extolling for the tories, though some of them the prince’s conduct. Id. 19. It was spoke; they recovered their spirits after signed by the archbishop, his last public the lords’ amendments. This account of act. Burnet has exposed himself to the the debate is remarkable, and clears up lash of Ralph by stating this address of much that is obscure in Grey, whom the Dec. 11 incorrectly.

[The prince issued Parliamentary History has copied. The two proclamations, Jan. 16 and 21, ad-declaration of right was drawn up rather dressed to the soldiers and sailors, on hastily, sergeant Maynard, as well as which Ralph comments in his usual in-younger lawyers, pressing for no delay vidious manner. They are certainly ex-in filling the throne.

I suppose that the pressed in a high tone of sovereignty, wish to screen themselves under the statwithout the least allusion to the king, or ute of Henry VII. had something to do to the request of the peers, and some with this, which was also very expedient in itself. -1845. ]

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JAMES II. PROCEEDINGS OF CONVENTION. 97 vacant. They resolved unanimously the next day, That it hath been found by experience inconsistent with the safety and welfare of this protestant kingdom to be governed by a popish prince.1 This vote was a remarkable triumph of the whig party, who had contended for the exclusion bill; and, on account of that endeavor to establish a principle which no one was now found to controvert, had been subjected to all the insults and reproaches of the opposite faction. The lords agreed with equal unanimity to this vote; which, though it was expressed only as an abstract proposition, led by a practical inference to the whole change that the whigs had in view. But upon the former resolution several important divisions took place. The first question put, in order to save a nominal allegiance to the late king, was, whether a regency, with the administration of regal power under the style of king James II. during the life of the said king James, be the best and safest way to preserve the protestant religion and the laws of this kingdom? This was supported both by those peers who really meant to exclude the king from the enjoyment of power, such as Nottingham, its great promoter, and by those who, like Clarendon, were anxious for his return upon terms of security for their religion and liberty. The motion was lost by fifty-one to forty-nine; and this seems to have virtually decided, in the judgment of the house, that James had lost the throne. The lords then resolved that there was an original contract between the king and the people, by fifty-five to forty-six; a position that seems rather too theoretical, yet necessary at that time, as denying the divine origin of monarchy, from which its absolute and indefeasible authority had been plausibly derived.

They concurred, without much debate, in the rest of the commons’ vote, till they came to the clause that he had abdicated the government, for which they substituted the word “deserted.” They next omitted the final and most important clause, that the throne was thereby vacant, by a majority of fifty-five to forty-one. This was owing to the party of lord Danby, who asserted a devolution of the crown on the princess of Orange.

It seemed to be tacitly understood 1 Commons’ Journals; Parl. Hist. its vacancy should be filled by a king or 2 Somerville and several other writers a regent. Such a mode of putting the have not accurately stated the question, question would have been absurd. I ob. and suppose the lords to have debated serve that M. Mazure has been deceived whcther the throne, on the hypothesis of by these authorities. VOL. III. 7

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98 PROCEEDINGS OF CONVENTION. CHAP. XIV. by both sides that the infant child was to be presumed spurious. This at least was a necessary supposition for the tories, who sought in the idle rumors of the time an excuse for abandoning his right. As to the whigs, though they were active in discrediting this unfortunate boy’s legitimacy, their own broad principles of changing the line of succession rendered it, in point of argument, a superfluous inquiry. The tories, who had made little resistance to the vote of abdication, when it was proposed in the commons, recovered courage by this difference between the two houses; and, perhaps by observing the king’s party to be stronger out of doors than it had appeared to be, were able to muster 151 voices against 282 in favor of agreeing with the lords in leaving out the clause about the vacancy of the throne.’ There was still, however, a far greater preponderance of the whigs in one part of the convention than of the tories in the other. In the famous conference that ensued between committees of the two houses upon these amendments, it was never pretended that the word “abdication”

was used in its ordinary sense, for a voluntary resignation of the crown.

The commons did not practise so pitiful a subterfuge. Nor could the lords explicitly maintain, whatever might be the wishes of their managers, that the king was not expelled and excluded as much by their own word “
desertion ” as by that which the lower house had employed. Their own previous vote against a regency was decisive upon this point.2 But as abdication was a gentler term than forfeiture, so desertion appeared a still softer method of expressing the same idea. Their chief objection, however, to the former word was that it led, or might seem to lead, to the vacancy of the throne, against which their principal arguments were directed. They contended that in our government there could be no interval or vacancy, the heir’s right being complete by a demise of the crown; so that it would at once render the monarchy elective, if any other person were designated to the succession. The commons did not deny that the present case was one of election, though they refused to allow that 1

Parl. Hist. 61. The chief speakers ham, who had been solicitor-general to on this side were old sir Thomas (larges, Charles, but was removed in the late brother-in-law of general Monk, who had reign. been distinguished as an opponent of ad-2 James is called ” the late king” in ministration under Charles and James, a resolution of the lords on Feb. 2. and Mr.

Finch, brother of lord Notting

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JAMES II. PROCEEDINGS OF CONVENTION. 99 the monarchy was thus rendered perpetually elective. They asked, supposing a right to descend upon the next heir, who was that heir to inherit it? and gained one of their chief advantages by the difficulty of evading this question. It was indeed evident that, if the lords should carry their amendments, an inquiry into the legitimacy of the prince of Wales could by no means be dispensed with.

Unless that could be disproved more satisfactorily than they had reason to hope, they must come back to the inconveniences of a regency, with the prospect of bequeathing interminable confusion to their posterity. For, if the descendants of James should continue in the Roman catholic religion, the nation might be placed in the ridiculous situation of acknowledging a dynasty of exiled king,;, whose lawful prerogative would be withheld by another race of protestant regents. It was indeed strange to apply the provisional substitution of a regent in cases of infancy or imbecility of mind to a prince of mature age, and full capacity for the exercise of power. Upon the king’s return to England this delegated authority must cease of itself, unless supported by votes of parliament as violent and incompatible with the regular constitution as his deprivation of the royal title, but far less secure for the subject, whom the statute of Henry VII.

would shelter in paying obedience to a king de facto, while the fate of sir Henry Vane was an awful proof that no other name could give countenance to usurpation. A great part of the nation not thirty years before had been compelled by acts of parliament to declare upon oath their abhorrence of that traitorous position, that arms might be taken up by the king’s authority against his person or those commissioned by him, through the influence of those very tories or loyalists who had now recourse to the identical distinction between the king’s natural and political capacity, for which the presbyterians had incurred so many reproaches. In this conference, however, if the whigs had every advantage on the solid grounds of expediency, or rather political necessity, the tories were as much superior in the mere argument, either as it regarded the common sense of words, or the principles of our constitutional law. Even should we admit that an hereditary king is competent to abdicate the 1 13 Car. II.

c. i.; 17 Car. II.. ii.

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100 PROCEEDINGS OF CONVENTION. CHAP. XIV. throne in the name of all his posterity, this could only be intended of a voluntary and formal cession, not such a constructive abandonment of his right by misconduct as the commons had imagined. The word “forfeiture” might better have answered this purpose; but it had seemed too great a violence on principles which it was more convenient to undermine than to assault. Nor would even forfeiture bear out by analogy the exclusion of an heir whose right was not liable to be set aside at the ancestor’s pleasure. It was only by recurring to a kind of paramount, and what I may call hyper-constitutional law, a mixture of force and regard to the national good, which is the best sanction of what is done in revolutions, that the vote of the commons could be defended. They proceeded not by the stated rules of the English government, but the general rights of mankind. They looked not so much to Magna Charta as the original compact of society, and rejected Coke and Hale for Hooker and Harrington. The house of lords, after this struggle against principles undoubtedly very novel in the discussions of parliament, gave way to the strength of circumstance and the steadiness of the commons. They resolved not to insist on their amendments to the original vote; and followed this up by a resolution, that the prince and princess of Orange shall be declared king and queen of England, and all the dominions thereunto belonging.l But the commons with a noble patriotism delayed to concur in this hasty settlement of the crown, till they should have completed the declaration of those fundamental rights and liberties for the sake of which alone they had gone forward with this great revolution.2 That declaration, being at once an exposition of the misgovernment which had compelled them to dethrone the late king, and of the conditions upon which they elected his successors, was incorporated in 1 This was carried by sixty-two to passed against a regency, out of unwillforty-seven, according to lord Clarendon; ingness to disagree with the majority of several of the tories going over, and his brethren; but he was entirely of others who had been hitherto absent Burnet’s mind. The votes of the bishops coming down to vote. Forty peers pro-are not accurately stated in most books, tested, including twelve bishops out of which has induced me to mention them seventeen present. Trelawney, who had here. Lords’ Journals, Feb. 6. voted against the regency, was one of 2 It had been resolved, Jan. 29, that them, but not Compton, Lloyd of St.

before the committee proceed to fill the Asaph, Crewe, Sprat, or Hall; the three throne now vacant, they will proceed to former, I believe, being in the majority. secure our religion, laws, and liberties. Lloyd had been absent when the voto

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JAMES II. ACCESSION OF WILLIAM AND MARY. 101 the final resolution to which both houses came on the 13th of February, extending the limitation of the crown as far as the state of affairs required: ” That William and Mary, prince and princess of Orange, be, and be declared, Elevatio king and queen of England, France, and Ireland, of William and the dominions thereunto belonging, to hold the and Mary to the throne. crown and dignity of the said kingdoms and dominions to them, the said prince and princess, during their lives, and the life of the survivor of them; and that the sole and full exercise of the regal power be only in, and executed by, the said prince of Orange, in the names of the said prince and princess, during their joint lives; and after their decease the said crown and royal dignity of the said kingdoms and dominions to be to the heirs of the body of the said princess; for default of such issue, to the princess Anne of Denmark, and the heirs of her body; and for default of such issue, to the heirs of the body of the said prince of Orange.” Thus, to sum up the account of this extraordinary change in our established monarchy, the convention pronounced, under the slight disguise of a word unusual in the language of English law, that the actual sovereign had forfeited his right to the nation’s allegiance. It swept away by the same vote the reversion of his posterity and of those who could claim the inheritance of the crown. It declared that, during an interval of nearly two months, there was no king of England; the monarchy lying, as it were, in abeyance from the 23d of December to the 13th of February. It bestowed the crown on William, jointly with his wife indeed, but so that her participation of the sovereignty should be only in name.1 It 1 See Burnet’s remarkable conversa-it must be observed that the nation owel tion with Bentinck, wherein the former her no particular debt of gratitude, nor warmly opposed the settlement of the had she any better claim than her sister crown on the prince of Orange alone, as to fill a throne by election which had Hialifa.x had suggested. But nothing been declared vacant. In fact, there was in it is more remarkable than that the no middle course between what was done, bishop’does not perceive that this was and following the precedent of Philip, as virtually done; for it would be difficult to which Bentinck said he fancied the to prove that Mary’s royalty differed at prince would not like to be his wife’s all from that of a queen consort, except gentleman usher; for a divided soverin having her name in the style. She eignty was a monstrous and impracticawas exactly in the same predicament as ble expedient in theory, however the subPhilip had been during his marriage missive disposition of the queen might with Mary I.

Her admirable temper have prevented its mischiefs. Burnet made her acquiesce in this exclusion seems to have had a puzzled view of this: from power, which the sterner character for he says afterwards, ” It seemed to be of her husband demanded; and with re-a double-bottomed monarchy, where spect to the conduct of the convention, there were two joint sovereigns; but

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102 CHANGE OF THE PREPONDERATING CHAP. XIV. postponed the succession of the princess Anne during his life. Lastly, it made no provision for any future devolution of the crown in failure of issue from those to whom it was thus limited, leaving that to the wisdom of future parliaments. Yet only eight years before, nay much less, a large part of the nation had loudly proclaimed the incompetency of a full parliament, with a lawful king at its head, to alter the lineal course of succession. No whig had then openly professed the doctrine, that not only a king, but an entire royal family, might be set aside for public convenience. The notion of an original contract was denounced as a republican chimera. The deposing of kings was branded as the worst birth of popery and fanaticism. If other revolutions have been more extensive in their effect on the established government, few perhaps have displayed a more rapid transition of public opinion. For it cannot, I think, be reasonably doubted that the majority of the nation went along with the vote of their representatives. Such was the termination of that contest which the house of Stuart had obstinately maintained against the liberties, and of late against the religion, of England; or rather, of that far more ancient controversy between the crown and the people which had never been wholly at rest since the reign of John. During this long period, the balance, except in a few irregular intervals, had been swayed in favor of the crown; and though the government of England was always a monarchy limited by law, though it always, or at least since the admission of the commons into the legislature, partook of the three simple forms, yet the character of a monarchy was evidently prevalent over the other parts of the constitution.

But, since the Revolution of 1688, and particularly from thence to the death of George II., after which the popular element grew much stronger, it seems equally just to say that the predominating character has been aristocratical; the prerogative being in some respects too limited, and in others too little capable of effectual those who know the queen’s temper and plausible grounds, on Mary’s death, that principles had no apprehensions of di-the parliament was dissolved by that vided counsels or of a distracted govern-event, the writs having been issued in ment.”

Vol. ii. p. 2. The convention her name as well as the king’s. A paper had not trusted to the queen’s temper printed, but privately handed about and principles. It required a distinct with the design to prove this, will be act of parliament (2 W. & M. c. 6) to found in Parl. Iist. v. 867. But it was enable her to exercise the regal power not warmly taken up by any party.during the king’s absence from England. 1845.] [It was urged by some, not without

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JAMES II. ELEMENT OF THE CONSTITUTION. 103 exercise, to counterbalance the hereditary peerage, and that class of great territorial proprietors who, in a political division, are to be reckoned among the proper aristocracy of the kingdom. This, however, will be more fully explained in the two succeeding chapters.

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104 CHARACTER OF THE REVOLUTION. CHAP. XV CHAPTER XV. ON THE REIGN OF

WILLIAM III. Declaration of Rights - Bill of Rights-Military Force without Consent declared illegal-Discontent with the new Government-Its Causes -Incompatibility of the Revolution with received Principles 

Character and Errors of William - Jealousy of the Whigs-Bill of Indemnity-Bill for restoring CorporationsSettlement of the Revenue -

Appropriation of Supplies - Dissatisfaction of the King-No Republican Party in Existence-William employs Tories in Miristry-Intrigues with the late King-Schemes for his Restoration-Attainder of Sir John Fenwick - Ill Success of the War - Its Expenses - Treaty of Ryswick -Jealousy of the Commons -Army reduced -Irish Forfeitures resumed -Parliamentary Inquiries - Treaties of Partition - Improvements in Constitution under William -

Bill for Triennial Parliaments - Law of Treason - Statute of Edward III. -

Its constructive Interpretation - Statute of William III. - Liberty of the Press-Law of Libel Religious Toleration - Attempt at Comprehension-Schism of the Nonjurors - Laws against Roman Catholics - Act of Settlement - Limitations of Prerogative contained in it - Privy Council superseded by a Cabinet - Exclusion of Placemen and Pensioners from Parliament -

Independence of Judges -Oath of Abjuration. 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 favorable 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

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WILL. III. DECLARATION OF RIGHTS. 105 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.’

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. The declaration of rights presented to the prince of Orange by the marquis of Halifax, as speaker of the lords, Declaration in the presence of both houses, on the 18th of Feb-of rights.

ruary, 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 revolutionsettlement, 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 1 Parl. Hist. v. 54.

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106 BILL OF RIGHTS. CHAP. XV. 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 hightreason ouglt 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.1 This declaration was, some months afterwards, confirmed by a regular act of the legislature in the bill of illofrights 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 forever 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 generalization 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.” 2 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 recognized, and in many cases so convenient.8 But the palpable danger of permitting it to exist in its indefinice state, subject to the interpretation of time1 Parl. Hist.

v. 108. 8 Parl. Hist. 345. s Journals, 11th and 12th Feb. 1688-9.

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WILL. III. ILLEGALITY OF STANDING ARMY. 107 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.1 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 ille-Mlfrceityh gality of a standing army in time of peace, unless out consent with consent of parliament. It seems difficult to illega 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.2 It was however at 1 Lords’ Journals, 22d Nov. 1689. 1667, on the insult offered to the coasts [Pardons for murder used to be granted by the Dutch fleet, a great panic arising, with a “non obstantibus statutis.’ After 12,000 fresh troops were hastily levied. the Revolution it was contended that they The commons, on July 25, came to an were no longer legal: 1 Shower, 284.

unanimous resolution, that his majesty But Holt held “‘the power of pardoning be humbly desired by such members as all offences to be an inseparable incident are his privy council, that, when a peace of the crown and its royal power.” This is concluded, the new-raised forces be savors a little of old tory times. For disbanded. The king, four days after, in there are certainly unrepealed statutes of a speech to both houses, said, “he wonEdward III. which materially limit the dered what one thing he had done since crown’s prerogative of pardoning felonies. his coming into England to persuade any -1845.] sober person that he did intend to govern 2 The guards retained out of the old by a standing army; he said he was more army disbanded at the king’s return have an Englishman than to do so. IIe desired, been already mentioned to have amounted for as much as concerned him, to preserve to about 5000 men, though some assert the laws,” &c. Parl. Hist. iv. 333. Next their number at first to have been consession the two houses thanked him for siderably less. No objection seems to having disbanded the late raised forces. have been made at the time to the con-Id. 339. But in 1673, during the second tinuance of these regiments. But in Dutch war, a considerable force having

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108 ILLEGALITY OF STANDING ARMIY. CHAP. XV. 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 lorrect.1 But its distinct assertion in the bill of rights put a been levied, the house of commons, after to inflict any punishment by martial law. a warm debate, resolved, Nov. 3, that a No court-martial, in fact, can have any standing army was a grievance. Id.

coercive jurisdiction except by statute; 604. And in February following, that unless we should resort to the old tributhe continuing of any standing forces in nal of the constable and marshal. And this nation, other than the militia, is a that this was admitted, even in bad times, great grievance and vexation to the we may learn by an odd case in sir Thomas people; and that this house do humbly Jones’s Reports, 147. (Pasch.

33 Car. 2, petition his majesty to cause immediately 1681.) An action was brought for assault to be disbanded that part of them that and false imprisonment. The defendant were raised since Jan. 1, 1663. Id. 665.

pleaded that he was lieutenant-govern.or This was done not long afterwards; but of the isle of Sicily, and that the plaintiff early in 1678, on the pretext of entering was a soldier belonging to the garrison; into a war with France, he suddenly and that it was the ancient custoni of the raised an army of 20,000 men, or more, castle that, if any soldier refused to render according to some accounts, which gave obedience, the governor might puniAs so much alarm to the parliament, that him by imprisonment for a reasonable they would only vote supplies on con-time, which he had therefore done. The dition that these troops should be imme-plaintiff demurred, and had judgment in diately disbanded. Id. 985. The kilg, his favor. By demurring, he put it to however, employed the money without the court to determine whether this plea, doing so, and maintained, in the next which is obviously fabricated in order to session, that it had been necessary to cover the want of any general right to keep them on foot; intimating, at the maintain discipline in this manner, were same time, that he was now willing to valid in point of law; which they decided, comply, if the house thought it expe-as it appears, in the negative. dient to disband the troops, which they In the next reign, however, an attempt accordingly voted with unanimity to be was made to punish deserters capitally, necessary for the safety of his majesty’s not by a court-martial, but on the auperson and preservation of the peace of thority of an ancient act of parliament. the government. Nov. 25. Id.

1049. Chief-justice Herbert is said to have James showed, in his speech to parlia-resigned his place in the king’s bench ment, Nov. 9, 1685. that he intended to rather than come in to this. Wright suckeep on foot a standing army. Id. 1371. ceeded him; and two deserters, having But, though that house of commons was been convicted, were executed in London. very differently composed from those in Ralph, 961. I cannot discover that there his brother’s reign, and voted as large was anything illegal in the proceeding. a supply as the king required, they re-and therefore question a little whether solved that a bill be brought in to render this were really Herbert’s motive. See 8 the militia more useful; an oblique and Inst. 96. timid hint of their disapprobation of a [I have since observed, in a passage regular force, against which several mem-which had escaped me, that the cause of bers had spoken. sir Edward Herbert’s resignation, which I do not find that any one, even in de-was in fact no resignation, but only an bate, goes the length of denying that the exchange of places with Wright, chiefking might by his prerogative maintain justice of the common pleas, was his a regular army; none, at least, of the objection to the king’s insisting on the resolutions in the commons can be said execution of one of these deserters at to have that effect. Plymouth, the conviction having occur1 It is expressly against the petition of redat Reading. State Trials, xii. 262, from right to quarter troops on the citizens, or Heywood’s Viindication of Fox. - 1845.]

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WILL. III. DISCONTENT WITH NEW GOVERNMENT. 109 most essential restraint on the monarchy, and rendered it in effect forever impossible to employ any direct force or intimidation against the established laws and liberties of the people. A revolution so thoroughly remedial, and accomplished with so little cost of private suffering, so little of Discontent angry punishment or oppression of the vanquished, with the ought to have been hailed with unbounded thank-new governfulness 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 subjects’ 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 causes. 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 Incompfatihe by any known law, so repugnant to the principles Revolution n a J s ~*, n,, i * with received of the established church, that a nation accustomed principles. 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 rumors in his behalf.1 Thus, at the moment when William I See several in the Somers Tracts, vol. of the Convention, by Dr. Sherlock, is X. One of these, a Lette to a Member very ably written, and puts all the con

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110 REVOLUTION OPPOSED TO PRINCIPLES. CHAP. XV. and Mary were proclaimed (though it seems highly 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 reputations and consciences by submission upon some casuistical pretext.l 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 honorable course of refusing the new oaths; and thus began the schism of the nonjurors, 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.2 sequences of a change of government, as conscientious, and several of whom had to popular dissatisfaction, &c., much as very recently sustained so conspicuously they turned out, though, of course, fail-the brunt of the battle against king ing to show that a treaty with the king James, was very painful; and motives of would be less open to objection. Sher-policy, as well as generosity, were not lock declined for a time to take the oaths; wanting in favor of some indulgence towbut, complying afterwards, and writing ards them. On the other hand, it was in vindication, or at least excuse, of the dangerous to admit such a reflection on Revolution, incurred the hostility of the the new settlement as would be cast by Jacobites, and impaired his own reputa-its enemies, if the clergy, especially the tion by so interested a want of consis-bishops, should be excused from the oath tency; for he had been the most eminent of allegiance. The house -of lords made champion of passive obedience. Even an amendment in the act requiring this the distinction he found out, of the law-oath, dispensing with it in the case of fulness of allegiance to a king de facto, ecclesiastical persons, unless they should was contrary to his former doctrine. be called upon by the privy council.

[A pamphlet, entitled “A Second Letter This, it was thought, would furnish a toaFriend,” in answer to the declaration security for their peaceable demeanor of James II. in 1692 (Somers Tracts, x. without shocking the people and occa378). which goes wholly on Revolution sioning a dangerous schism. But the principles, is attributed to Sherlock by commons resolutely opposed this amendScott, who prints the title as if Sherlock’s ment, as an unfair distinction, and dename were in it, probably following the rogatory to the king’s title. Parl. Hist. former edition of the Somers Tracts. But 218. Lords’ Journals, 17th April, 1689. I do not find it ascribed to Sherlock in The clergy, however, had six months the Biographia Britannica, or in the list more time allowed them, in order to of his writings in Watt’s Bibliotheca. - take the oath, than the possessors of lay 1845.] offices. 1 1 W. & M. c. 8 Upon the whole, I think the reasons 2

The necessity of excluding men so for deprivation greatly preponderated.

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WILL. III. CHARACTER AND ERRORS OF WILLIAM. 111 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. The demeanor of William, always cold and sometimes harsh, his foreign origin (a sort of crime in Eng-Character lish eyes) and foreign favorites, the natural and and errors almost laudable prejudice against one who had of Waam. risen by the misfortunes of a very near relation, conspired with a desire of power not very judiciously displayed by him 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 Public prayers for the king by name form prived bishops, though many of them part of our liturgy; and it was surely through their late behavior were deimpossible to dispense with the clergy’s servedly esteemed, cannot be reckoned reading them, which was as obnoxious among the eminent characters of our as the oath of allegiance.

Thus the ben-church for learning or capacity. Saneficed priests must have been excluded; croft the most distinguished of them, and it was hardly required to make an had not made any remarkable figure; exception for the sake of a few bishops, and none of the rest had any preteneven if difficulties of the same kind would sions to literary credit. Those who filled not have occurred in the exercise of their their places were incomparably superior. jurisdiction, which hangs upon, and has Among the nonjuring clergy a certain a perpetual reference to, the supremacy number were considerable men; but, of the crown. upon the whole, the well-affected part of The king was empowered to reserve a the church, not only at the Revolution, third part of the value of their benefices but for fifty years afterwards, contained to any twelve of the recusant clergy. by far its most useful and able members. 1 W. & M. c. 8, s. 16. But this could Yet the effect of this expulsion was highonly be done at the expense of their suc-ly unfavorable to the new government; cessors; and the behavior of the nonju-and it required all the influence of a rors, who strained every nerve in favor latitudinarian school of divinity, led by of the dethroned king, did not recom-Locke, which was very strong among the mend them to the government. The delaity under William, to counteract it.

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112 JEALOUSY OF THE WHIGS. CHAP. XV. 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 favor 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. The king had been raised to the throne by the vigor and Jealousy of zeal of the whigs; but the opposite party were so the whigs. 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 opposition1 to be rather the patriots of the church than 1

Burnet. Ralph, 174, 179.

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WILL. IIT. BILL OF INDEMNITY. 113 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.1 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. The same honest warmth which impelled the whigs to murmur at the employment of men sullied by their Bill of compliance with the court, made them unwilling indemnity. 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 1 The parliamentary debates are full The star of the house of Stuart grew pale of complaints as to the mismanagement forever on that illustrious day when of all things in Ireland. These might James displayed again the pusillanimity be thought hasty or factious; but mar-which had cost him his English crown. shal Schomberg’s letters to the king yield Yet the best friends of William dissuaded them strong confirmation. Dalrymple, him from going into Ireland, so immiAppendix, 26, &c. William’s resolution nent did the peril appear at home. Dalto take the Irish war on himself saved rymple, id. 97.

” Things,” says Burnet, not only that country, but England. Our ”’ were in a very ill disposition towards a own constitution was won on the Boyne.

fatal turn.” VOL. III. 8

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114 BILL OF INDEMNITY. CHAP. XV. 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 precedents set at the Restoration than to give them a chance of regaining public sympathy by a prosecution out of the regular course of law.’ 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.2 Nothing was concluded as to the indemnity in this parliament; but in the next, William took 1 See the debates on this subject in were the advisers and prosecutors of the the Parliamentary History, which is a murders of lord Russell, col. Sidney, transcript from Anchitel Grey. The Armstrong, Cornish, &c., and who were whigs, or at least some hot-headed men the advisers of issuing out writs of quo among them, were certainly too much warrantos against corporations, and who actuated by a vindictive spirit, and conwere their regulators, and also who were sumed too much time on this necessary the public assertors of the dispensing bill. power.” The examinations taken before 2 The prominent instance of Sawyer’s this committee are printed in the Lords’ delinquency, which caused his expulsion, Journals, 20th Dec. 1689; and there cerwas his refusal of a writ of error to sir tainly does not appear any want of zeal Thomas Armstrong. Parl. Hist. 516. It to convict the guilty. But neither the law was notorious that Armstrong suffered by nor the proofs would serve them. They a legal murder; and an attorney-general could establish nothing against Dudley in such a case could not be reckoned as North, the tory sheriff of 1683, except free from personal responsibility as an that he had named lord Russell’s panel ordinary advocate who maintains a cause himself, which, though irregular and for his fee. The first resolution had been doubtless ill-designed, had unluckily a to give reparation out of the estates of precedent in the conduct of the famous the judges and prosecutors to Armstrong’s whig sheriff, Slingsby Bethell, a man who, family, which was, perhaps rightly, aban-like North, though on the opposite side, doned. cared more for his party than for decency The house of lords, who, having a and justice. Lord Halifax was a good power to examine upon oath, are sup-deal hurt in character by this report, and posed to sift the truth in such inquiries never made a considerable figure afterbetter than the commons, werenot remiss wards. Burnet, 34. His mortification in endeavoring to bring the instruments led him to engage in an intrigue with the of Stuart tyranny to justice. Besides the late king, which was discovered; yet, I committee appointed on the very second suspect that, with his usual versatility, day of the convention, 23d Jan.

1689, to he again abandoned that cause before his investigate the supposed circumstances of death. Ralph, 467. The act of grace suspicion as to the death of lord Essex (2 W. & M. c. 10) contained a small num(a committee renewed afterwards, and her of exceptions, too many indeed for formed of persons by no means likely to its name; but probably there would have have abandoned any path that might lead been difficulty in prevailing on the houses to the detection of guilt in the late king), to pass it generally; and no one was ever another was appointed in the second ses-molested afterwards on account of his sion of the same parliament (Lords’ Jour-conduct before the Revolution. nals, 2d Nov. 1689),’ to consider who

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WILL. III. BILL FOR RESTORING CORPORATIONS. 115 the matter into his own hands by sending down an act of grace. I scarcely venture, at this distance from the scene, to pronounce an opinion as to the clause introduced Bil for by the whigs into a bill for restoring corporations, restoring which excluded for the space of seven years all corporations.

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 ot rigor 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 readmission, 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.1 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 favor, their wise and admirable settlement of the revenue. The first parliament of Charles II. had fixed on 1,200,0001. 1 Parl. Hist.

508, et pcet. Journals, believe, almost entirely to his memory. 2d and 10th Jan. 1689-90. Burnet’s ac-Ralph and Somerville are scarce ever count is confused and inaccurate, as is candid towards the whigs in this reign.

very commonly the case: he trusted, I

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116 SETTLEMENT OF THE REVENUE. CHAP. XV. as the ordinary revenue of the crown, sufficient in times of Settlement no peculiar exigency for the support of its dignity of the and for the public defence. For this they provided revenue. 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.3 For the revenue of James from these sources, on an average of the four years of his reign, amounted to 1,500,9641.; to which something more than 400,0001. is to be added for the produce of duties imposed for eight years by his parliament of 1686.2 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.3 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 usually been done 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.4 Its 1 [Ralph puts the annual revenue about former; a technical subtlety, against the 1675 at 1.358,0001.; but with an anticipa-spirit of the grant. Somers seems not to tion, that is, debt, upon it to the amount have come in to this; but it is hard to of 866,9541. The expense of the army, collect the sense of speeches from Grey’s navy, ordnance, and the fortress of Tan-memoranda.

Parl. Hist. 139. It is not gier was under 700,0001. The rest went to be understood that the tories univerto the civil list, &c. Hist. of England, i. sally were in favor of a grant for life, 290. 1845.] and the whigs against it. But as the s Parl. iist. 150. latter were the majority, it was in their 3 Burnet, 13; Ralph, 138, 194. Some power, speaking of them as a party, to of the lawyers endeavored to persuade have carried the measure.

the house that the revenue, having been 4 [Davenant, whom I quote at present granted to James for his life, devolved to from Harris’s Life of Charles II., p. 378, William during the natural life of the computes the hereditary excise on beer

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WILL. III. APPROPRIATION OF SUPPLIES. 117 average expenses appeared to have been 1,700,0001. Of this 610,0001. was the charge of the late king’s army, and 83,4931. of the ordnance. Nearly 90,0001: was set under the suspicious head of secret service, imprested to Mr. Guy, secretary of the treasury.’ 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. They began by voting that 1,200,0001. should be the annual revenue of the crown in time of peace; and Appropriathat one half of this should be appropriated to the tion of maintenance of the king’s government and royal supplies. family, or what is now called the civil list, the other to the public expense and contingent expenditure.2

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 kings 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 alone to have amounted, in 1689 to the reliefs and wardships of military ten694,4981. So extraordinarily good a bar-ure.] gain had the crown made for giving up 1

Parl. Hist. 187 2 Id. 193.

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118 APPROPRIATION OF SUPPLIES. CHAP. XV. 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.1 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 moneys 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 transferrence of the executive government (for the phrase is hardly too strong) fiom 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 1 Parl. Hist. iv. 1359.

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WILL. III. DISSATISFACTION OF THE KING. 119 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.1 The convention parliament continued the revenue as it already stood until December, 1690.2 Their suc-Dissatisfaccessors complied so far with the king’s expectation tion of the as to grant the excise duties, besides those that king were hereditary, for the lives of William and Mary, and that of the survivor.3 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 endeavor 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.4 1 Hatsell’s Precedents, iii. 80, et alibi; the successor should only enjoy this revHargrave’s Juridical Arguments, i. 394. enue of excise till December, 1693. In 2 1 W. and H. sess. 2, c. 2. This was the debate on this subject in the new intended as a provisional act “for the parliament, the tories, except Seymour, preventing all disputes and questions were for settling the revenue during the concerning the collecting, levying, and king’s life; but many whigs spoke on assuring the public revenue due and the other side. Parl. Hist. 552. The payable in the reigns of the late kings latter justly urged that the amount of Charles II. and James II., whilst the the revenue ought to be well known bebetter settling the same is under the fore they proceed to settle it for an indef^onsideration of the present parlia-inite time. The tories at that time had nent.” great hopes of the king’s favor, and took 3 2 W. and M. c.

3. As a mark of re-this method of securing it. spect no doubt, to the king and queen, 4 Burnet, 35. it was provided that, if both should die,

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120 DISSATISFACTION OF THE KING. CHAP. XV. 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

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WILL. III. NO REPUBLICAN PARTY IN EXISTENCE. 121 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 stigmatize 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. It is by no means unusual to find mention of a commonwealth or republican party, as if it existed in some No republiforce at the time of the Revolution, and through-can party in out the reign of William III.; nay, some writers, existence. 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, endeavored 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

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122 EMPLOYMENT OF TORIES IN MINISTRY. CHAP. XV. 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 characterized 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.1 William, however, was very early lead to imagine, whether illiam em-through the insinuations of lord Nottingham, as ploys tcries Burnet pretends, or the natural prejudice of kings inministry 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. IHe dissolved the convention parliament, and gave his confidence for some time to the opposite faction.2 But among these a real disaffection to his government prevailed so widely that 1 See the Somers Tracts; but still temporary writings, especially the Immore the collection of State Tracts in the partial Inquiry of the earl of Warringtime of William III., in three volumes ton, an honest and intrepid whig (Ralph, folio. These are almost entirely on the ii. 188), we have a letter from Mr. Wharwhig side; and many of them, as I have ton (afterwards marquis of Wharton) to intimated in the text, lean so far towards the king, in Dalrymple, Appendix, p. 80, republicanism as to assert the original on the change in his councils at this sovereignty of the people in very strong time, written’in a strain of bold and terms, and to propose various changes in bitter expostulation, especially on the the constitution, such as a greater equal-score of his employing those who had ity in the representation. But I have been the servants of the late family, not observed any one which recom-alluding probably to Godolphin, who was mends, even covertly, the abolition of indeed open to much exception. “I hereditary monarchy. [It may even be wish,” says lord Shrewsbury, in the suspected that some of these were really same year, you could have established intended for the benefit of James. See your party upon the moderate and one in Somers Tracts, x. 148, entitled honest-principled men of both factions; ” Good Advice before it be too late, being but, as there be a necessity of declaring, a Breviate for the Convention.” The tone I shall make no difficulty to own my is apparently republican; yet we find the sense that your majesty and the governadvice to be no more than imposing great ment are much more safe depending restrictions on the king during his life, upon the whigs, whose designs, if any but not to prejudice a protestant suc-against, are improbable and remoter, cessor; in other words, the limitation than with the tories, who many of them, scheme proposed by Halifax in 1679. It questionless, would bring in king James; may here be observed that the political and the very best of them, I doubt, have tracts of this reign on both sides display a regency still in their heads; for, though a great deal of close and vigorous rea-I agree them to be the properest instrusoning, and may well bear comparison ments to carry the prerogative high, yet with those of much later periods.- I fear they have so unreasonable a ven1845.] eration for monarchy, as not altogether 2 The sudden dissolution of this par-to approve the foundation yours is built liament cost him the hearts of those who upon.” Shrewsbury Correspond. 15. had made him king. Besides several

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WILL. III. INTRIGUES WITH THE LATE KING. 123 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.l 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.2 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.3 But we know that a large proportion Intrigues of the tories were engaged in a confederacy to with the Support him. Almost every peer, in fact, of any late king. 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 (Danby), and Marlborough, t Parl. Hist. 575; Ralph, 194; Burnet, acts, the judges would not admit it to be 41. Two remarkable protests were en-disputed, and said that the act, being tered on the journals of the lords on made by king, lords, and commons, they occasion of this bill; one by the whigs, ought not now to pry into any defects of who were outnumbered on a particular the circumstances of calling them todivision, and another by the tories on gether, neither would they suffer a point the passing of the bill. They are both to be stirred wherein the estates of so vehemently expressed, and are among many were concerned. Heath v. Pryn, the not very numerous instances where-1 Ventris, 15. in the original whig and tory principles 2 Great indulgence was shown to the have been opposed to each other. The assertors of indefeasible right. The lords tory protest was expunged by order of resolved that there should be no penalty the house.

It is signed by eleven peers in the bill to disable any person from and six bishops among whom were Stil-sitting and voting in either house of parlingfleet and Lloyd. The whig protest liament. Journals, May 5, 1690.

The has but ten signatures. The convention bill was rejected in the commons by 192 had already passed an act for preventing to 178. Journals, April 26; Parl. Hist. doubts concerning their own authority, 594; Burnet, 41, ibid. 1 W. & M. stat. 1, c. 1, which could, of 3 Some English subjects took James:s course, have no more validity than they commission, and fitted out privateers were able to give it. This bill had been which attacked our ships. They were much opposed by the tories. Parl. Hist.

taken, and it was resolved to try them as v. 122. pirates; when Dr. Oldys, the king’s adIn order to make this clearer, it should vocate, had the assurance to object that be observed that the convention which this could not be done, as if James had restored Charles II., not having been still the prerogatives of a sovereign summoned by his writ, was not reckoned prince by the law of nations. He was, by some royalist lawyers capable of of course, turned out, and the men passing valid acts; and consequently all hanged; but this is one instance among the statutes enacted by it were confirmed many of the difficulty under which the by the authority of the next. Clarendon government labored through the unforlays; it down as undeniable that such tunate distinction of facto and jure. confirmation was necessary. Neverthe-Ralph, 423. The boards of customs and less, this objection having been made in excise were filled by Godolphin with the court of king’s bench to one of their Jacobites. Shrewsb. Corresp. 51.

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124 INTRIGUES WITH THE LATE KING. CHAP. XV the second at that time prime minister of William (as he might justly be called), the last with circumstances of extraordinary and abandoned treachery 1 towards his country as 1 The name of Carmarthen is perpet-court, to speak of the queen with severity, ually mentioned among those whom the and of the king with rude and odious late king reckoned his friends. Macpher-epithets.

Marlborough, however, went son’s Papers, i. 457, &c. Yet this con-much farther. ie brought that narrow duct was so evidently against his interest and foolish woman into his own dark inthat we may perhaps believe him insin-trigues with St. Germain’s. She wrote cere. William was certainly well aware to her father, whom she had grossly, and that an extensive conspiracy had been almost openly, charged with imposing a formed against his throne. It was of spurious child as prince of Wales, suppligreat importance to learn the persons eating his forgiveness, and professing reinvolved in it and their schemes. May pentance for the part she had taken. Life we not presume that lord Carmarthen’s of James, 476; Macpherson’s Papers, i. return to his ancient allegiance was 241. feigned, in order to get an insight into If this letter, as cannot seem improbthe secrets of that party? This has al-able, became known to William, we shall ready been conjectured by Somerville (p. have a more satisfactory explanation of 395) of lord Sunderland (who is also im-the queen’s invincible resentment towards plicated by Macpherson’s publication), her sister than can be found in any other and doubtless with higher probability; part of their history. Mary refused to for Sunderland, always a favorite of Wil-see the princess on her death-bed, which liam, could not without insanity have shows more bitterness than suited her plotted the restoration of a prince he mild and religious temper, if we look only was supposed to have betrayed. It is to their public squabbles about the evident that William was perfectly master Churchills as its motive.

Burnett, 90; of the cabals of St. Germain’s. That little Conduct of Duchess of Marlborough, 41. court knew it was betrayed, and the sus-But the queen must have deeply felt the picion fell on lord Godolphin.

Dalrymple, unhappy, though necessary, state of en189. But I think Sunderland and Carmity in which she was placed towards her marthen more likely, father. She had borne a part in a great I should be inclined to suspect that by and glorious enterprise, obedient to a some of this double treachery the secret woman’s highest duty, and had admirably of princess Anne’s repentant letter to performed those of the station to which her father reached William’s ears. She she was called; but still with some violahad come readily, or at least without tion of natural sentiments, and some opposition, into that part of the settle-liability to the reproach of those who do ment which postponed her succession, not fairly estimate the circumstances of after the death of Mary, for the re-her situation: 
mainder of the king’s life. It would, indeed, have been absurd to expect that Infelix! utcunque ferant ea facts William was to descend from his throne minores. in her favor; and her opposition could not have been of much avail. But, when Her sister, who had voluntarily trod the the civil list and revenue came to be same path, who had misled her into a settled, the tories made a violent effort to belief of her brother’s illegitimacy, had secure an income of 70,0001. a-year to her now, from no real sense of duty, but out and her husband. Parl. Hist. 492. As of pique and weak compliance with cunthis on one hand seemed beyond all fair ning favorites, solicited, in a clandestine proportion to the income of the crown, manner, the late king’s pardon. while his so the whigs were hardly less unreason-malediction resounded in the ears of the able in contending that she should de-queen. This feebleness and duplicity pend altogether on the king’s generosity; made a sisterly friendship impossible. especially as by letters-patent in the late As for lord M.rlborough, he was among reign, which they affected to call in ques-the first, if we except some Scots renetion, she had a revenue of about 30,0001. gades, who abandoned the cause of the In the end the house resolved to address Revolution. He had so signally broken the king that he would make the princess’s the ties of personal gratitude in his deincome 50.0001. in the whole. This, how-sertion of the king on that occasion, that, ever, left an irreconcilable enmity, which according to the severe remark of Hume, the artifices of Marlborough and his wife his conduct required for ever afterwards were employed to aggravate. They were the most upright, the most disinterested, accustomed, in the younger sister’s little and most public-spirited behavior to

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WILL. III. INTRIGUES WITH THE LATE KING. 125 well as his allegiance. Two of the most distinguished whigs (and if the imputation is not fully substantiated against others 1 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 render it justifiable. What, then, must themselves in a manner to raise suspicwe think of it, if we find in the whole of ions of their fidelity, as appears by those this great man’s political life nothing most interesting letters of Mary, pubbut ambition and rapacity in his motives, lished by Dalrymple, which display her nothing but treachery and intrigue in entire and devoted affection to a hushis means! He betrayed and abandoned band of cold and sometimes harsh man. James because he could not rise in his ners, but capable of deep and powerfavor without a sacrifice that he did not ful attachment, of which she was the care to make; he abandoned William chief object. I have heard that a late and betrayed England because some ob-proprietor of these royal letters was ofstacles stood yet in the way of his ambi-fended by their publication, and that the tion. I do not mean only, when I say black box of king William that contained that he betrayed England, that he was them has disappeared from Kensingready to lay her independence and liberty ton. The names of the duke of Bolton, at the feet of James II. and Louis XIV.; his son the marquis of Winchester, the but that in one memorable instance he earl of Monmouth, lord Montague, and communicated to the court of St. Ger-major Wildman, occur as objects of the main’s, and through that to the court of queen’s or her minister’s suspicion. DalVersailles, the secret of an expedition rymple, Appendix, 107. &c. But Caragainst Brest, which failed in conse-marthen was desirous to throw odium quence, with the loss of the commander on the whigs; and none of these nobleand eight hundred men. Dalrymple, iii. men, except on one occasion lord Win13; Life of James, 522; Macpherson, i. chester, appear to be mentioned in the 487. In short, his whole life was such a Stuart Papers. Even Monmouth, whose picture of meanness and treachery, that want both of principle and sound sense one must rate military services very high might cause reasonable distrust, and indeed to preserve any esteem for his who lay at different times of his life unmemory. der this suspicion of a Jacobite intrigue, The private memoirs of James II., as is never mentioned in Macpherson, or well as the papers published by Mac-any other book of authority within my pherson, show us how little treason, and recollection. Yet it is evident generally especially a double treason, is thanked that there was a disaffected party among or trusted by those whom it pretends to the whigs, or, as in the Stuart Papers serve. We see that neither Churchill they were called, republicans, who ennor Russell obtained any confidence tertained the baseless project of restorfrom the banished king. Their motives ing James upon terms. These were were always suspected; and something chiefly what were called compounders; more solid than professions of loyalty to distinguish them from the thoroughwas demanded. though at the expense of paced royalists, or old tories. One pertheir own credit. James could not for-son, whom we should least suspect, is give Russell for saying that, if the French occasionally spoken of as inclined to a fleet came out, he must fight.

Macpher-king whom he had been ever conspicuson, i. 242. If Providence in its wrath ous in opposing the earl of Devon had visited this island once more with a shire; but the Stuart agents often wrote Stuart restoration, we may be sure that according to their wishes rather than these perfidious apostates would have their knowledge; and it seems hard to been no gainers by the change. believe what is not rendered probable by - During William’s absence in Ireland any part of his public conduct. in 1690. some of the whigs conducted

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126 INTRIGUES WITH THE LATE KING. CHAP. XV. 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.’ 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.2 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.” 8 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.4 It is not, however, to be inferred, from this extensive combination in favor of the banished king, that his party em1 This fact apparently rests on good 2

Commons’ Journals, Nov. 28 et post; authority; it is repeatedly mentioned in Dalrymple, iii. 11; Ralph, 346. the Stuart Papers, and in the Life of 3

Id. Jan. 11, 1692-3. James. Yet Shrewsbury’s letter to Wil-4 Burnet says, “The elections of parliam, after Fenwick’s accusation of him, liament (1690) went generally for men seems hardly consistent with the king’s who would probably have declared for knowledge of the truth of that charge in king James, if they could have known its full extent. I think that he served how to manage matters for him.” P. 41. his master faithfully as secretary, at This is quite an exaggeration; though least after some time, though his warm the tories, some of whom were at this recommendation of Marlborough, “; who time in place, did certainly succeed in has been with me since this news [the several divisions. But parties had now failure of the attack on Brest] to offer begun to be split; the Jacobite tories vot.

his services with all the expressions of ing with the malecontent whigs.

Upon duty and fidelity imaginable” (Shrews-the whole, this house of commons, like the bury Correspondence, 47), is somewhat next which followed it, was well affected suspicious, aware as he was of that traito the revolutionsettlement and to pubtor’s connections. lie liberty.

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WILL. III. SCHEMES FOR HIS RESTORATION. 127 braced 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;1 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, Schemes not as his brother, alone and unarmed, strong only for his in the consentient voice of the nation, but amidst restoration. the bayonets of 30,000 French auxiliaries. These were the pledges of just and constitutional rule which 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 noncompounders: 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 call the republican party at the expense of his ancient prerogative.2 In a declaration which he issued from St. Germain in 1692 1 Macpherson’s State Papers, i. 459. three parts at least in four of the English These were all tories, except three or clergy had not taken the oaths to Wilfour. The great end James and his ad-liam. Id. 409. herents had in view was to persuade 2 Macpherson, 433; Somers Tracts, xi. Louis into an invasion of England; their 94, This is a pamphlet of the time, exrepresentations, therefore, are to be taken posing the St. Germain faction, and with much allowance, and in some cases James’s unwillingness to make conceswe know them to be false; as when James sions. It is confirmed by the most auwssures his brother of Versailles that thentic documents.

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128 SCHEMES FOR RESTORING JAMES. CHAr. XV. 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.1 This declaration, and the virulence of Jacobite pamphlets in the same tone, must have done harm to his cause.2 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.8 But no reflecting man could avoid I Ralph, 350; Somers Tracts, x. 211. an erroneous church. Their objection, 2

Many of these Jacobite tracts are however, seems to have been rather to the printed in the Somers Collection, vol. x. expression than the plain sense; for they The more we read of them, the more cause agreed that he might promise to leave the appears for thankfulness that the nation protestant church in possession of its escaped from such a furious party.

They endowments and privileges. Many, too, confess, in general, very little error or of the English Jacobites, especially the misgovernment in James, but abound nonjuring bishops, were displeased with with malignant calumnies on his succes-the declaration, as limiting the prerogasor. The name of Tullia is repeatedly tive, though it contained nothing which given to the mild and pious Mary. The they were not clamorous to obtain from best of these libels is styled ” Great Bri-William. P. 514. A decisive proof how tain’s just Complaint” (p. 429), by sir little that party cared for civil liberty, James Morntgomery, the false and fickle and how little would have satisfied them proto-apostate of whiggism. It is writ-at the revolution, if James had put the ten with singular vigor, and even ele-church out of danger! The next paragance; and rather extenuates than denies graph is remarkable enough to be exthe faults of the late reign.

tracted for the better confirmation of 3 Ralph, 418; see the Life of James, what I have just said. ” By this the 501. It contains chiefly an absolute king saw he had outshot himself more promise of pardon, a declaration that he ways than one in this declaration; and would protect and defend the church of therefore what expedient he would have England as established by law, and found in case he had been restored, not secure to its members all the churches, to put a force either upon his conscience universities, schools, and colleges, to-or honor, does not appear, because it gether with its immunities, rights, and never came to a trial; but this is certain, privileges; a promise not to dispense his church-of-England friends absolved with the test, and to leave the dispensing him beforehand, and sent him word that, power in other matters to be explained if he considered the preamble and the and limited by parliament; to give the very terms of the declaration, he was not royal assent to bills for frequent parlia-bound to stand by it, or to put it out ments, free elections, and impartial trials; verbatim as it was worded; that the and to confirm such laws made under changing some expressions and ambiguthe present usurpation as should be ten-ous terms, so long as what was princidered to him by parliament.‘“Theking,” pally aimed at had been kept to, could he says himself, ” was sensible he should not be called a receding from his declabe blamed by several of his friends for ration, no more than a new edition of a submitting to such hard terms; nor was book can be accounted a different work, it to be wondered at if those who knew though corrected and amended. And, not the true condition of his affairs were indeed, the preamble showed his promise scandalized at it; but, after all, he had was conditional, which they not performnothiug else to do.” P. 505. He was so ing, the king could not be tied; for my little satisfied with the articles in this lord Middleton had writ that, if the king declaration respecting the church of signed the declaration, those who took it England, that he consulted several French engaged to restore him in three or four and English divines, all of whom, includ-months after; the king did his part, but ing Bossuet, after some difference, came their failure must needs take off the to an opinion that he could not in con-king’s future obligation.” science undertake to protect and defend

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WILL. III. SCHEMES FOR RESTORING JAMES. 129 perceiving that such promises wrung from his distress were illusory and insincere, that in the exaltation 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 Jarles’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.1 His connection 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,2 gave a fatal blow to the interests of In a Latin letter, the original of which sides kings, in former times, that he is written in James’s own hand, to Inno-should have lent an ear to this project: cent XII., dated from Dublin, Nov. 26, and as to James’s moral and religious 1689, he declares himself ” Catholicam character, it was not better than that of fidem reducere in tria regna statuisse.” Clarendon, whom we know to have counSomers Tracts, x. 552. Though this may tenanced similar designs for the assassihave been drawn up by a priest, I sup-nation of Cromwell. In fact, the received pose the king understood what he said. code of ethics has been improved in this It appears also by lord Balcarras’s Me-respect. We may be sure, at least, that moir that lord Melfort had drawn up the those who ran such a risk for James’s declaration as to indemnity and indul-sake expected to be thanked and rewarded gence in such a manner that the king in the event of success. I cannot, theremight break it whenever he pleased. fore, agree with Dalrymple, who says that Somers Tracts, xi. 517. nothing but the fury of party could have 1 The protestants were treated with exposed James to this suspicion.

Though neglect and jealousy, whatever might the proof seems very short of conviction, have been their loyalty, at the court of there are some facts worthy of notice. James, as they were afterwards at that 1. Burnet positively charges the late of his son. The incorrigibility of the king with privity to the conspiracy of Stuart family is very remarkable. Ken-Grandval, executed in Flanders for a denet, p. 638 and 738, enumerates many sign on William’s life, 1692 (p. 95); and instances. Sir James Montgomery, the this he does with so much particularity earl of Middleton, and others, were and so little hesitation, that he seems to shunned at the court of St. Germain as have drawn his information from high guilty of this sole crime of heresy, unauthority. The sentence of the courtless we add that of wishing for legal martial on Grandval also alludes to securities. James’s knowledge of the crime (Somers 2 James himself explicitly denies, in Tracts, x. 580), and mentions expressions the extracts from his Life published by of his, which, though not conclusive, Macpherson, all participation in the would raise a strong presumption in any scheme of killing William, and says that ordinary case. 2. William himself, in a he had twice rejected proposals for bring-memorial intended to have been deliving him off alive; though it is not true ered to the ministers of all the allied that he speaks of th3 design with indig-powers at Ryswick, in answer to that of nation, as some have pretended. It was James (id. xi. 103; Ralph, 730), posivery natural, and very conformable to tively imputes to the latter repeated conthe principles of kings, and others be-spiracies against his life; and he was VOL. III. 9

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130 ATTAINDER OF FENWICK. CHAP. XV. 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 instrument of association abjuring the title of James, and pledging the subscribers to revenge the King’s death after the mode of that in the reign of Elizabeth, was generally signed by both houses of parliament and throughout the kingdom.1 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. Perhaps the indignation of parliament against those who Attainder sought to bring back despotism through civil war of sir John and the murder of an heroic sovereign was carried Fenwick. 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 incapable of saying what he did not be-Orange, and to bring him before us, lieve. In the same memorial he shcws taking to your assistance such other of too much magnanimity to assert that the our faithful subjects in whom you may birth of the prince of Wales was an im-place confidence.” Hist. de la Revol. posture. 3. A paper by Charnock, unde-iii. 443. It is justly observed by M. niably one of the conspirators, addressed Mazure that Crosby might think no reto James, contains a marked allusion to newal of his authority necessary in 1696 William’s possible death in a short time; to do that which he had been required which even Macpherson calls a delicate to do in 1693. If we look attentively at mode of hinting the assassination-plot to James’s own language in Macpherson’s him. Macpherson, State Papers, i. 519. extracts, without much regarding the Compare also State Trials, xii. 1323.1327, glosses of Innes, it will appear that he 1329. 4. Somerville, though a disbeliever does not deny in express terms that he in James’s participation, has a very cu-had consented to the attempt in 1696 to rious quotation from Lamberti, tending seize the prince of Orange’s person. In to implicate Louis XIV. (p. 428); and the commission to Crosby he is required we can hardly suppose that he kept the not only to do this, but to bring him be. other out of the secret. Indeed, the fore the king. But is it possible to concrime is greater and less credible in sider this language as anything else than Louis than in James. But devout kings an euphemism for assassination? have odd notions of morality; and their Upon the whole evidence, therefore, I confessors, I suppose, much the same. I now think that James was privy to the admit, as before, that the evidence falls conspiracy, of which the natural and inshort of conviction; and that the verdict, evitable consequence must have been in the language of Scots law, should be, foreseen by himself; but I leave the text Not Proven; but it is too much for our as it stood, in order to show that I have Stuart apologists to treat the question as not been guided by any prejudice against one absolutely determined. Documents his character. may yet appear that will change its 1 Parl. IIist. 991. Fifteen peers and aspect. ninety-two commoners refused. The I leave the above paragraph as it was names of the latter were circulated in a written before the publication of M. Ma-printed paper, which the Iouse voted to zure’s valuable History of the Revolution. be a breach of their privilege, and deHe has therein brought to light a com-struction of the freedom and liberties of mission of James to Crosby, in 1693, au-parliament. Oct. 30, 1696. This, howthorizing and requiring him “to seize ever, shows the unpopularity of their opand secure the person of the prince of position

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WILL. III. ATTAINDER OF FENWICK. 131 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 grandjurymen 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.1 Nor, perhaps, 1 Burnet; see the notes on the Oxford trusting any part of the volume except edition.

Ralph, 692. The motion for the letters themselves. The editor has, bringing in the bill, Nov. 6, 1696, was in defiance of notorious facts, represented carried by 169 to 61; but this majority sir John Fenwick’s disclosures as false; lessened at every stage; and the final and twice charges him with prevarication division was only 189 to 156. In the (p.

404), using the word without any lords it passed by 68 to 61; several whigs, knowledge of its sense, in declining to and even the duke of Devonshire, then answer questions put to him by members lord-steward voting in the minority. of the house of commons which he could Parl. Hist.

996-1154. Marlborough prob-not have answered without inflaming the ably made prince George of Denmark animosity that sought his life. support the measure. Shrewsbury Cor-It is said, in a note of lord Hardwicke respondence, 449. Many remarkable let-on Burnet, that ” the king, before the ters on the subject are to be found in this session, had sir John Fenwick brought collection; but I warn the reader against to the cabinet council, where he was

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132 ILL SUCCESS OF THE WAR. CHAP. XV. would it have been carried but for Fenwick’s imprudent dis. closure, 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 favor 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.1 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.2 Amidst these scenes of dissension and disaffection, and ll success amidst the public losses and decline which aggraof the war.

vated 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 honor and liberty; not at the crisis only of the Revolution, but through the difficult present himself. But sir John would seems to show that a story which has not explain his paper.” See also Shrews-been several times told, and is confirmed bury Correspondence, 419, et post. The by the biographer of James II., and by truth was, that Fenwick, having had his Macpherson’s Papers, that William cominformation at secondhand, could not pelled Shrewsbury to accept office in 1693, prove his assertions, and feared to make by letting him know that he was aware his case worse by repeating them. of his connection with St. Germains, is 1 Godolphin, who was then first com-not founded in truth. He could hardly missioner of the treasury, not much to have written in such a style to the king the liking of the whigs, seems to have with that fact in his way.

Monmouth, been tricked by Sunderland into retiring however, had some suspicion of it, as from office on this occasion. Id. 415. appears by the hints he furnished to sir Shrewsbury, secretary of state, could John Fenwick towards establishing the hardly be restrained by the king and his charges. P. 450. Lord Dartmouth, full own friends from resigning the seals as of inveterate prejudices against the king, soon as he knew of Fenwick’s accusation. charges him with personal pique against Iis behavior shows either a conscious-sir John Fenwick, and with instigating ness of guilt, or an inconceivable cow-members to vote for the bill. Yet it ardice. Yet at first he wrote to the king, rather seems that he was, at least for pretending to mention candidly all that some time, by no means anxious for it. had passed between him and the earl of Shrewsbury Correspondence, and com. Middleton, which in fact amounted to pare Coxe’s Life of Marlborough, i. 63. nothing. P. 147. This letter, however, 2 Life of James. ii. 558.

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WILL. III. EXPENSES OF THE WAR. 133 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. The expense therefore of this war must not be reckoned unnecessary; nor must we censure the government Its expenses. for that small portion of our debt which it was compelled to entail on posterity.1 It is to the honor of Wil1 The debt at the king’s death amount-III. c. 12, ~ 15. Sinclair, i. 397. State ed to 16,394,7021., of which above three Trials, xiv. 1, et post. According to a millions were to expire in 1710. Sin-particular statement in Somers Tracts, clair’s Hist. of Revenue, i. 425 (third edi-xii. 383. the receipts of the exchequer, intion). cluding loans, during the whole reign of Of this sum 664,2631. was incurred be-William, amounted to rather more than fore the Revolution, being a part of the 72,000,0001. The author of the letter to money of which Charles II. had robbed the Rev. T. Carte, in answer to the latter’s the public creditor by shutting up the Letter to a Bystander, estimates the sums exchequer. Interest was paid upon this raised under Charles II., from Christmas down to 1683, when the king stopped it. 1660 to Christmas 1684, at 46,233,9231. The legislature ought undoubtedly to Carte had made them only 32.474,2651. have done justice more effectually and But his estimate is evidently false and despeedily than by passing an act in 1699, ceptive. Both reckon the gross produce, which was not to take effect till December not the exchequer payments.

This con25, 1705; from which time the excise was troversy was about the year 1742. Accharged with three per cent. interest on cording to Sinclair, Hist. of Revenue, i. the principal sum of 1,328,5261., subject E09, Carte had the last word; but I canto be redeemed by payment of a moiety. not conceive how he answered the aboveNo compensation was given for the loss mentioned letter to him. Whatever night of so many years’interest. 12 & 13

W. be the relative expenditure of the two

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134 EXPENSES OF THE WAR. CHAP. XV liam’s administration, and of his parliaments, not always clearsighted, 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.1 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 landtax 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 burden 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 by 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.2 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 reigns, it is evident that the war of 1689 but after the war at two shillings and was brought on in a great measure by the sixpence. corrupt policy of Charles II. 2 Godfrey’s Short Account of Bank of 1 Davenant, Essay on Ways and England, in Somers’ Tracts. xi. 5.

KenMeans. In another of his tracts, vol. ii. net’s complete Hist. iii.

723. Ralph, 681. 266, edit. 1771, this writer computes the Shrewsbury Papers. Macpherson’s Anpayments of the state in 1688 at one shil-nals of Commerce, A.D. 1697. Sinclair’s ling in the pound of the national income, Hist. of Revenue.

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WIL. III. tiE NAVY. 135 the bold remedy of a recoinage, 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 confiont 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.l 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, l ” Nor is it true that the sea was neg-Dutch had made of our shipping in king lected; for I think during much the Charles the Second’s reign; and that his greater part of the war which began in successor, king James the Second, had 1689 we were entirely masters of the sea, not in his whole navy, fitted out to defeat by our victory in 1692, which was only the designed invasion of the prince of three years after it broke out: so that for Orange, an individual ship of the first or seven years we carried the broom. And second rank, which all lay neglected, and for any neglect of our sea-affairs other-mere skeletons of former services, at wise, I believe, I may in a few words their moorings. These this abused prince prove that all the princes since the Con-repaired at an immense charge, and quest never made so remarkable an im-brought them to their pristine magnifiprovement to our naval strength as king cence.” Answer to Swift’s Conduct of William. IIe (Swift) should have been the Allies, in Somers’ Tracts, xiii. 247. told, if he did not know, what havoc the

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136 TREATY OF RYSWICK. CHAP. XV. Rooke, and Shovel kept up the honor 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 preeminence 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.1 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. The treaty of Ryswick was concluded on at least as fair Treaty of terms as almost perpetual ill fortune could warRyswick. rant us to expect. It compelled Louis XIV. to recognize 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.2 1 Dalrymple has remarked the impor-manifest disadvantage with which the tant consequences of this bold measure: allies carried on the war, but because but we have learned only by the publi-public credit in England was almost ancation of lord Shrewsbury’s Correspond-nihilated, and it was hardly possible to ence that it originated with the king, pay the army. The extreme distress for and was carried through by him against money is forcibly displayed in some of the mutinous remonstrances of Russell. the king’s letters to lord Shrewsbury. See pp. 68, 104, 202, 210, 234. This was P. 114, &c. These were in 1696, the very a most odious man; as ill-tempered and nadir of English prosperity; from which. violent as he was perfidious. But the by the favor of Providence and the rudeness with which the king was treated buoyant energies of the nation, we have, by some of his servants is very remark-though not quite with an uniform moable. Lord Sunderland wrote to him at tion, culminated to our present height least with great bluntness.

Hardwicke (1824). Papers, 444. If the treaty could have been conclud2 The peace of Ryswick was absolutely ed on the basis originally laid down, it necessary, not only on account of the would even have been honorable. But the defection of the duke of Savoy, and the French rose in their terms during their

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WILL. III. JEALOUSY OF THE COMMONS. 137 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 had 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. The house of commons which sat at the conclusion of the treaty of Ryswick, chiefly composed of whigs, and Jealousy having zealously cooperated in the prosecution of of the the late war, could not be supposed lukewarm in commons’ the cause of liberty, or indifferent to the aggrandizement of France. But the nation’s exhausted state seemed to demand an intermission of its burdens, and revived the natural and laudable disposition to frugality which had characterized in all former times an English parliament. The arrears of the war, joined to loans made during its progress, left a debt of negotiation; and through the selfishness Shrewsbury Correspondence, 316, &c. of Austria obtained Strasburg, which Still the terms were better than those ofthey had at first offered to relinquish, fered in 1693, which William has been and were very near getting Luxemburg. censured for refusing.

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138 ARMY REDUCED. CHAP. XV, 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.l 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. Such, however, was the influence of what may be called Army the constitutional antipathy of the English in that reduced, 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 10,000.2 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 700,0001. 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.3 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 1 Moylenow publishedhis “Argument, land. Id. 653.

Other pamphlets of a showing that a standing army is incon-similar description may be found in the sistent with a free government, and ab-same volume. solutely destructive to the constitution 2 Journals, 11th Dec. 1697. Parl. of the English monarchy.” (State Tracts, Hist. 1167.

temp. W. III., ii. 564); and Trenchard 3 Journals, 21st Dec. 1697. Parl.

Hist. his History of Standing Armies in Eng-v. 1168. It was carried by 225 to 86.

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WILL. III. ARMY REDUCED. 139 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 ho 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,1 it was found impossible to resist a diminution of the army to 7000
troops.2 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 humors and prejudices of the crown in matters of far higher moment.3 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 I “The elections fell generally,” says fell into a great mistake about the reducBurnet, ” on men who were in the interest tion of the army; as Bolingbroke in his of government; many of them had in-Letters on History very candidly admits, deed some popular notions, which they though connected with those who had had drank in under a bad government, voted for it. and thought this ought to keep them un-2 Journals, 17th Dec.

1698. Parl. list. der a good one; so that those who wished 1191. well to the public did apprehend great 3 Journals, 10th Jan. 18th, 20th, and difficulties in managing them.” Upon 25th March. Lords’ Journals, 8th Feb.

which speaker Onslow has a very proper Parl. Hist. 1167, 1191. Ralph, 808.

note: “They might happen to think,” Burnet, 219. It is now beyond doubt he says,‘“a good one might become a that William had serious thoughts of bad one, or a bad one might succeed to a quitting the government and retiring to good one. They were the best men of Holland, sick of the faction and ingratithe age, and were for maintaining the tude of this nation.

Shrewsbury CorRevolution government by its own prin-respondence, 571.

Hardwicke Papers, ciples, and not by those of a government 862. This was in his character, and not it had superseded.” ” The elections,” we like the vulgar story which that retailer read in a letter of Mr. Montague, Aug. of all gossip, Dalrymple, calls a well1698, “have made a humor appear in authenticated tradition, that the king the counties that is not very comfortable walked furiously round his room, exto us who are in business.

But yet, after claiming, ” If I had a son, by G  the all, the present members are such as will guards should not leave me.” It would neither hurt England nor this govern-be vain to ask how this son would have ment, but I believe they must be handled enabled him to keep them against the very nicely.” Shrewsbury Correspond-bent of the parliament and people.

ence, 551. This parliament, however,

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140 IRISH FORFEITURES RESUMED. CHAP. XV. 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. There is, if not more apology for the conduct of the comL^-sh mons, yet more to censure on the king’s side, in forfeitures another scene of humiliation which he passed resumed 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 favorites, such as the earl of Portland and the countess of Orkney.1 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. Th 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 per1 The prodigality of William in grants cited much clamor in 1697, and proto his favorites was an undeniable reduced a speech from Mr. Price, afterproach to his reign.

Charles II. had, wards a baron of the exchequer, which however, with much greater profuseness, was much extolled for its boldness, not though much less blamed for it, given rather to say, virulence and disaffection. away almost all the crown-lands in a few This is printed in Parl. Hist. 978, and years after the Restoration; and the corn-many other books. The king, on an mons could not now be prevailed upon address from the house of commons, reto shake those grants, which was urged voked the grant, which indeed was not by the court, in order to defeat the re-justifiable. His answer on this occasion, sumption of those in the present reign. it may here be remarked, was by its The length of time undoubtedly made a mildness and courtesy a striking contrast considerable difference. An enormous to the insolent rudeness with which the grant of the crown’s domanial rights in Stuarts, one and all, had invariably North Wales to the earl of Portland extreated the house.

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WILL. III. IRISH FORFEITURES RESUMED. 141 haps 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.1 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 coequal 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.2 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.3 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. The essential change which the fall of the old dynasty had wrought in our constitution displayed itself in such Parliaa vigorous spirit of inquiry and interference of mnentary parliament with all the course of government as, ques. 1 Parl. Hist. 1171, 1202, &c. Ralph. in Somers Tracts, vol. ii., and State Burnet. Shrewsbury Correspondence. Tracts, temp. W. III. vol.

ii. See also Davenant’s Essay on Grants 2 In Feb. 1692. and Resumptions, and sundry pamphlets 3 See the same authorities, especially the Shrewsbury Letters. p. 602.

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142 PARLIAMENTARY INQUIRIES. CHAP. XV. if not absolutely new, was more uncontested and more effec tual 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; though with 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 ot the commons; and, in the coalition they formed with the malecontent 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 cooperated 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 inquire 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.1 I do not think there is any earlier precedent in the Journals for so specific an inquiry 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 inquiry, though it is a frequent practice to elude it. The right to inquire 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 inquiring into the miscarriages of the war in the next session.2 They went very fully into the dispute between the board of admiralty 1 Commons’ Journals, June 1, Aug. 2

Commons’ Journals, Nov. 1 12.

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WILL. III. PARLIAMENTARY INQUIRIES. 143 and admiral Russell after the battle of La Hogue; and the year after, investigated the conduct of his successors, Killigrew and Delaval, in the command of the Channel fleet.2

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 honor and interest of his majesty and his kingdoms.8 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 endeavors 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.4 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 inquiry 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 parlia1

Parl. Hist. 657. Dalrymple. Com-erously but imprudently put into the mons’ and Lords’ Journals. command of the fleet. 2 Parl. Hist. 793.

Delaval and Killi-3 Commons’Journals, Feb. 27. 1694-5. grew were Jacobites, whom William gen-4 Parl. Hist. 941. Burnet, 105.

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144 TREATIES OF PARTITION. CHAP. XV. ment, 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 inquiry, 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.1 The general unpopularity of William’s administration, and Treaties of more particularly the reduction of the forces, partition. 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 aggrandizement 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; the 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 ex1 Burnet, 163.

Commons’ Journals, proposed as a qualification for members Jan. 81, 1695-6. An abjuration of king of this council; but this was lost by 195

James’s title in very strong terms was to 188.

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WILL. III. TREATIES OF PARTITION. 145 claimed 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 clamor of a tory house of commons in 1701 (for the malecontent 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.l 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 councillors, 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.2 1 See speaker Onslow’s Note on Bur-iv. 417) (from lord Somers’s papers), that, net (Oxf. edit.

iv. 468), and lord Hard-when some of the ministers objected to wicke’s hint of his father’s opinion. Id. parts of the treaty, lord Portland’s con475. But see also lord Somers’s plea as stant answer was, that nothing could be to this. State Trials, xiii. 267. altered; upon which one of them said, if 2 Parl. Hist. State Trials, xiv. 233. that was the case, he saw no reason why The letters of William, published in the they should be called together. And It Hardwicke State Papers, are both the appears by the Shrewsbury Papers, p. 371, most authentic and the most satisfactory that the duke, though secretary of state explanation of his policy during the three and in a manner prime minister, was enmomentous years that closed the seven-tirely kept by the king out of the secret teenth century. It is said, in a note of of the negotiations which ended in the lord Hardwicke on Burnet (Oxford edit. peace of Ryswick: whether, after all, VOL. III. 10

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146 IMPROVEMENTS IN CONSTITUTION. CHAP. XV. The whigs, such of them at least as continued to hold that Improve-name in honor, soon forgave the mistakes and failenstitu-ings of their great deliverer; and indeed a high in constitution under regard fir the memory of William III. may justly William. be reckoned one of the tests by which genuine whiggism, as opposed both to tory and republican principles, has always been recognized. By the opposite party he was rancorously hated; and their malignant calumnies still sully the stream of history.’ 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 honor 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. The enormous duration of seventeen years, for which Bill for Charles II. protracted his second parliament, triennial turned the thoughts of all who desired improveparliamenment ments in the constitution towards some limitation there remained some lurking distrust of some of whom had really borne no part his fidelity, or from whatever other cause in a measure he had promoted, sufficientthis took place, it was very anomalous ly displays the factiousness of their moand unconstitutional. And it must be tives. See lord Haversham’s speech on owned that by this sort of proceeding, this. Parl. Hist. 1298. which could have no sufficient apology 1 Bishop Fleetwood, in a sermon but a deep sense of the unworthiness of preached in 1703, says of William, mankind, William brought on himself ” whom all the world of friends and much of that dislike which appears so enemies knew how to value, except afew ungrateful and unaccountable. English wretches.” Kennet, 840. Boyer, As to the impeachments, few have pre-in his History of the Reign of Queen tended to justify them; even Ralph is Anne, p. 12, says that the king spent most half ashamed of the party he espouses of his private fortune, computed at no less with so little candor towards their adver-than two millions, in the service of the saries. The scandalous conduct of the English nation. I should be glad to have tories in screening the earl of Jersey, found this vouched by better authorwhile they impeached the whig lords, ity.

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WILL. III. BILL FOR TRIENNIAL PARLIAMENTS. 147 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.1 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.2 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 which was too common in this reign. 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.’ 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, sel1 Lords’

Journals. 2 Parl. Itist.754. 8 6 W. & M.

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148 LAW OF TREASON. CHAP. XV. dom 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 authorization 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 reenactment 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. The reign of William is also distinguished by the provisLaw of ions introduced into our law for the security of the treason. subject against iniquitous condemnations on the charge of hightreason, 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 hightreason 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 com

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WILL. III. STATUTE OF EDWARD II. 149 mons 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. “Whereas divers opinions have been before this time in what case treason shall be said, and in what not; Statute of the king, at the request of the lords and commons, Edward III. 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 of the lands and tenements holden of others as of himself.” 1 It seems impossible not to observe that the want of distinct arrangement natural to so unphilosophical an Is construcage, and which renders many of our old statutes tive intervery confused, is eminently displayed in this pretation’ 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 1 Rot. Parl. ii. 239. 3 Inst. 1.

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150 CONSTRUCTIVE INTERPRETATION OF CHAP. XV 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, at least formerly, than England, 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

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WILL. III. THE LAW OF TREASON. 151 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 hightreason, 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.’ 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 extension of so penal a statute was first given, if I am not mistaken, by the judges in 1663, on occasion of 1 3 Inst. 12. 1 Hale’s Pleas of the that end did assemble a multitude of Crown, 120. Foster, 195. Coke lays it people; this, being raised to the end aforedown positively, p. 14, that a conspiracy said, was a sufficient overt act of compassto levy war is not hightreason, as an ing the death of the queen.” The earliovert act of compassing the king’s death. est case is that of Storie, who was con” For this were to confound the several victed of compassing the queen’s death classes or membra dividentia.” Hale on evidence of exciting a foreign power objects that Coke himself cites the case to invade the kingdom. But he was of lords Essex and Southampton, which very obnoxious; and the precedent is seems to contradict that opinion. But it not good. Hale, 122. may be answered, in the first place, that It is also held that an actual levying a conspiracy to levy war was made high-war may be laid as an overt act of comtreason during the life of Elizabeth; and passing the king’s death, which indeed secondly, that Coke’s words as to that follows. fortiori from the former propocase are, that they ” intended to go to the sition; provided it be not a construccourt where the queen was, and to have tive rebellion, but one really directed taken her into their power, and to have against the royal authority. Hale, 123. removed divers of her council, and for

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1)2 CONSTRUCTIVE INTERPRETATION OF CHAP. XV a meeting by some persons at Farley Wood in Yorkshire,1 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.2

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.3 Nor does it speak in favor 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.4 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. III. c. 6, has confirmed, if not extended, what stood on rather a precarious basis, and rendered perpetual that of 36 G. III. 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, 1 Hale, 121. however, on this subject, it will be found 2 Foster’s Discourse on High Treason, that the probable danger to the king’s 196. State Trials, xii. 646, 790, 818; safety from rebellion was the groundwork xiii. 62 (sir John Friend’s case) et alibi. upon which this constructive treason This important question, having arisen rested; nor did either HIale or Foster, on lord Russell’s trial, gave rise to a con-Pemberton or Holt, ever dream that any troversy between two eminent lawyers, other death was intended by the statute sir Bartholomew Shower and sir Robert than that of nature. It was reserved for Atkins; the former maintaining, the lat-a modern crown lawyer to resolve this ter denying, that a conspiracy to depose language into a metaphysical personificathe king and to seize his guards was an tion, and to argue that, the king’s perovert act of compassing his death. State son being interwoven with the state, and Trials, ix. 719, 818. its sole representative, any conspiracy See also Phillipps’s State Trials, ii. 89, against the constitution must of its own 78; a work to which I might have re-nature be a conspiracy against his life. ferred in other places, and which shows State Trials, xxiv. 1183. the well-known judgment and impartial-4 13 Eliz. c. 1; 13

Car. 2, c. 1; 86 G ity of the author. 3, c. 7. 8 In the whole series of authorities,

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WILL. III. THE LAW OF TREASON. 153 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, honor, 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 law in cases of treason, 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.1 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 interests, are in themselves treasonable, yet the previous concert and conspiracy for such purpose could, under the statute of Edward III., only pass for a misdemeanor. Hence, while it has been positively laid down that an attempt by intimidation and violence to force the repeal of a law is hightreason,2 though directed rather against the two houses of parliament than the king’s person, the judges did 1 Hale, 123. Foster, 213. 2 Lord George Gordon’s case, State Trials, xxi. 649.

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154 CONSTRUCTIVE INTERPRETATION OF CHAP. XV. not venture to declare that a mere conspiracy and consultation to raise a force for that purpose would amount to that offence.1 But the statutes of 36 & 57 G. III. 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.2 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 per1

Hardy’s case, id. xxiv. 208. The them import such a compassing.1” Hale’s language of chief-justice Eyre is suffi-Pleas of Crown, 118. But this is indeficiently remarkable. nitely expressed, the words marked as a 2

Foster, 198. He seems to concur in quotation looking like a truism, andconHale’s opinion that words which being trary to the first part of the sentence; spoken will not amount to an overt act and the case of Williams, under James I., to make good an indictment for compass-which Hale cites in corroboration of this, ing the kiug’s death, yet, if reduced into will hardly be approved by any constituwriting, and published, will make such tional lawyer. an overt act, “if the matters contained in

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WILL. III. THE LAW OF TREASON. 155 son, 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 stigmatized, 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 hightreason 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

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156 LAW OF TREASON. CHAP. XV. 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.’ A mob of watermen and others, at the time of Sacheverell’s impeachment, set on fire several dissenting meeting-houses.2 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. It might for a moment be doubted, upon the statute of Ed1 Hale, 134. State Trials, vi. 879. bation with which sir Michael Foster has It is observable that Hale himself, as stamped it, some difficulty would arise chief baron, differed from the otherjudges in distinguishing this case, as reported, in this case. from many indictments under the riot 2 This is the well-known case of Da-act for mere felony; and especially from maree and Purchase, State Trials, xv. those of the Birmingham rioters in 1791, 520. Foster, 213. A rabble had attend-where the similarity of motives, though ed Sacheverell from Westminster to his the mischief in the latter instance was lodgings in the Temple. Some among far more extensive, would naturally have them proposed to pull down the meeting-suggested the same species of prosecution houses; a cry was raised, and several of as was adopted against Damaree and these were destroyed. It appeared to be Purchase. It may be remarked that their intention to pull down all within neither of these men was executed; their reach. Upon this overt act of levy-which, notwithstanding the sarcastic obing war the prisoners were convicted; servation of Foster, might possibly be some of the judges differing as to one of owing to an opinion, which every one but them, but merely on the application of a lawyer must have entertained, that the evidence to his case. Notwithstand-their offence did not amount to treaing this solemn decision, and the appro-son.

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WILL. III. STATUTE OF WILLIAM III. 157 ward 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, Statute of although different overt acts may be proved by illiam III. 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.1 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;2 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 cooperation of a servile bench of judges, had sullied the honor of English justice. A better tone of political senti1 7 W. III..

8, ~ 4. Foster, 257. 2 Foster, 234.

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158 TRIALS FOR TREASON. CHAP. XV. ment 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.’ Ashton was a gentleman who, in company with lord Preston, was seized in endeavoring 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 to, the prisoner as to material points of his defence, as Holt and Pollexfen did in this trial; the prac1 ” Would you have trials secured?” found guilty upon one evidence, and the says the author of the Jacobite Principles last upon nothing but presumptive Vindicated. (Somers Tracts, x. 526.) proof.”

Even the prostitute lawyer, sir ” It is the interest of all parties care Bartholomew Shower, had the assurance should be taken about them, or all parties to complain of uncertainty in the law of will suffer in their turns. Plunket, and treason. Id. 572. And Roger North, in Sidney, and Ashton were doubtless all his Examen, p. 411, labors hard to show murdered. though they were never so that the evidence in Ashton’s case was guilty of the crimes wherewith they were slighter than in Sidney’s.

charged; the one tried twice, the other

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WILL. III. TRIALS FOR TREASON. 159 tice of a neighboring kingdom, which, in our more advanced sense of equity and candor, we are agreed to condemn.1 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 rigor 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.2 A bill for regulating trials upon charges of hightreason passed the commons with slight resistance from the crown lawyers in 1691.8 The lords introduced a provision in their 1 State Trials, xii. 646.- See 668 and ward III., because it was not invented 799. for a century afterwards. According to 2

State Trials, xii. 1245. Ralph, 420. this rule, it could not be treason to shoot Somers Tracts, x. 472. The Jacobites the king with a pistol, or pcison him with took a very frivolous objection to the con-an American drug. viction of Anderton, that printing could 3 Parl. Hist. v. 698. tot be treason within the statute of Ed

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160 BILL FOR REGULATING TRIALS CHAP. XV. own favor, 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.1 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.2 In the new parliament that met in 1695 the 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.3 It provides that all persons indicted for hightreason 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.4 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 1

Parl. Iist. v. 675. judges were consulted whether they could 2 Id. 712, 737. Commons’ Journals, be indicted for a high misdemeanor on Feb. 8,1695.

this single testimony, as Hampden had 3 Parl. Hist. 965. Journal, 17th Feb. been in 1685; the attorney-general Treby 1696. Stat. 7 W. III. c. 3.

Though the maintaining this to be lawful. Four of court opposed this bill, it was certainly the judges were positively against this, favored by the zealous whigs as much as two more doubtfully the same way, one by the opposite party. altogether doubtful, and three in favor 4 When several persons of distinction of it. The scheme was very properly were arrested on account of a Jacobite abandoned; and at present, I suppose, conspiracy in 1690, there was but one nothing can be more established than the witness against some of them. The negative. Dalrymple, Append. 186.

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WILL. III. FOR HIGH TREASON. 161 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 places 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.l 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 fiom whom juries must be taken is as much to be apprehended, when it happens to be favorable 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 State Trials, xii. 1051. VOL. III. 11

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162 CONDUCT OF PROSECUTIONS CHAP. XV. 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 lhat 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.1 Nor does there lie, perhaps, any sufficient objection even to that which many dislike, which is more questionable than the rest, 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. The subtlety of crown lawyers in drawing indictments for treason, and sometimes the willingness of judges to favor 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 1 The dexterity with which lord Shaftesbury. But Johnson, in the Lives Shaftesbury (the author of the Charac-of the Poets, has, through inadvertence, teristics), at that time in the house of as I believe, given lord Halifax (Moncommons, turned a momentary confusion tagu) the credit of it; and some have which came upon him while speaking on since followed him. As a complete refuthis bill, into an argument for extending tation of this mistake, it is sufficient to the aid of counsel to those who might so say that Mr. Montagu opposed the bill. much-more naturally be embarrassed on His name appears as a teller on two divia trial for their lives, is well known. All sions, 31st Dec. 1691, and 18th Nov well-informed writers ascribe this to 1692.

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\;LL. III. FOR TREASON. 163 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.l 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 wresting 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.2 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.8 1 It was said by Scroggs and Jefferies als; besides much that is scattered that if one witness prove that A bought through the notes of Mr. Howell’s great a knife, and another that he intended to collection. Mr. Phillipps’s work, howkill the king with it, these are two wit-ever, was not published till after my own nesses within the statute of Edward VI. was written. But this has been justly reprobated. 3 Commons’ Journals, 9th Jan. and’ Upon some of the topics touched in 11th Feb. 1694-95. A bill to the same the foregoing pages, besides Hale and effect sent down from the lords was Foster, see Luders’ Considerations on the thrown out, 17th April, 1695.

Another Law of Treason in Levying War, and bill was rejected on the second reading in many remarks in Phillipps’s State Tri 1697. Id. 3d April.

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164 LIBERTY OF THE PRESS. CHAP. XV. 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.1 The liberty of the press consists, in a strict sense, merely Liberty of in an exemption from the superintendence of a the press. 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.2 It is manifest that such a doctrine was irreconcilable with 1 Somers Tracts, passim. John Dun-phens, in passing sentence on him for a ton the bookseller, in the History of his libel on Harley and Marlborough, that Life and Errors, hints that unlicensed to traduce the queen’s ministers was a books could be published by a douceur reflection on the queen herself. It is to Robert Stephens, the messenger of the said, however, that this and other prosepress, whose business it was to inform cutions were generally blamed; for the against them. public feeling was strong in favor of the 2 State Trials, xiv. 1103, 1128. Mr. liberty of the press. Boyer’s Reign of justice Powell told the Rev. Mr. Ste-Queen Anne, p. 286.

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VILL. III. LAW OF LIBEL. 165 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 armory, 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 attack.l 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. Meanwhile the judges naturally adhered to their established doctrine; and, in prosecutions for political Lawof libels, were very little inclined to favor what they libel. 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, 1 [In a tract called the ” Memorial of of Anne was the era of periodical polithe State of England,” 1705 (Somers tics.

Gutta cavat lapidem, non vi, sed Tracts, xii. 526), written on the whig saepe cadendo. We well knuw how side. in answer to Drake’s ” Memorial of forcibly this line describes the action of the Church of England,” we find avindi-the regular press. It did not begin to cation of the press, which had been at-operate much before 1704 or 1705, when tacked at that time by the tories: ” If the whigs came into office, and the rethe whigs have their Observator, have jection of the occasional conformity bill not the tories their Rehearsal? The blew up a flame in the opposite party. Review does not take more liberty than But even then it was confined to periodithe Whipping Post, nor is he a wilder cal papers, such as the Observator or politician than the Mercury. And many Rehearsal; for the common newspapers will think it a meaner character for Rid-were as yet hardly at all political.path to be Atwood’s antagonist than to 1845.] be author of the Flying Post.” The reign

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166 LAW OF LIBEL. CHAP. XV. 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.’ But as the defendant could only be convicted by the verdict of a jury, and jurors both partook of the general sentiment in favor 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 1 Pemberton, as I have elsewhere ob-what had been formerly done in other served, permitted evidence to be given cases of the like nature. Id. xvii. 659. as to the truth of an alleged libel in pub-L”

To make it a libel.” says Powell in lishing that sir Edmondbury Godfrey the case of the seven bishops, “it must had murdered himself. And what may be false, it must be scandalous, and it be reckoned more important, in a trial must tend to sedition.” Id. xii. 427. In of the famous Fuller on a similar charge, 1 Lord Raymond, 486, we find a case Holt repeatedly (not less than five where judgment was arrested on an intimes) offered to let him prove the truth dictment for a libel on persons ” to the if he could.

State Trials, xiv. 584. But, jurors unknown;” because they could on the trial of Franklin, in 1731, for pub-not properly say that the matter was lishing a libel in the Craftsman, lord false and scandalous, when they did not Raymond positively refused to admit of know the persons of whom it was spoken, any evideu:e to prove the matters to be nor could they say that any one was detrue, aud siaid he was only abiding by famed by it. -1845.]

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WILL. II. RELIGIOUS TOLERATION. 167 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 inquiry and decision. The Revolution is justly entitled to honor as the era of religious, in a far greaser degree than of civil lib-Religious erty; the privileges of conscience having had no toleration.

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 rival’ry; it was in despite of the law, it was through infringement of the constitution, by the court’s conndispesinivance, 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 favor of such ministers as might be induced to conform, and 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 other’s acceptance. The highchurch party would not endure any mention of indulgence.1 In the parliament of 1 See the pamphlets of that age, pas-but none like or think it reasonable that; sim. One of these, entitled’The Zealous are in authority.‘Tis an instrument of and Impartial Protestant,” 1681, the mischief and dissettlement to be courted: author ot which, though well known, I by those who would have change, but cannot recollect, after much invective, no way desirable by such as would be says,’ Liberty of conscience and tolera-quiet, and have the government undistion are things only to be talked of and turbed. For it is not consistent with pretended to by those that are under; public peace and safety without a stand

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168 RELIGIOUS TOLERATION. CHAP. XV. 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.1

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 ing army; conventicles being eternal enemy that Christianity ever had, was nurseries of sedition and rebellion.” P. the man that set up this way of tolera80. ” To strive for toleration,” he says tion.” P. 87. Such was the temper of in another place, ” is to contend against this odious faction.

And at the time all government. It will come to this, - they were instigating the government to whether there should be a government fresh severities, by which, I sincerely in the church or not? for if there be a believe, they meant the pillory or the government, there must be laws; if there gallows (for nothing else was wanting), be laws, there must be penalties an-scarce a jail in England was without nexed to the violation of those laws; non-conformistministers. One can hardly otherwise the government is precarious avoid rejoicing that some of these men. and at every man’s mercy; that is, it after the Revolution, experienced, not is none at all…. The constitution should indeed the persecution, but the poverty be made firm, whether with any altera-they had been so eager to inflict on tions or without them, and laws put in others. punctual vigorous execution. Till that The following passage from a very is done, all will signify nothing. The judicious tract on the other side, “Dischurch hath lost all, through remissness course of the Religion of England, 1667,” and non-execution of laws; and by the may deserve to be extracted: ’ Whether contrary course things must be reduced, cogent reason speaks for this latitude, be or they never will. To what purpose it now considered. low momentous in are parliaments so concerned to prepare the balance of this nation those protgood laws, if the officers who are in-estants are which are dissatisfied, in the trusted with the execution neglect that present ecclesiastical polity. They are duty, and let them lie dead? This everywhere spread through city and brings laws and government into con-country; they make no small part of all tempt, and it were much better the laws ranks and sorts of men; by relations and were never made; by these the dissenters commerce they are so woven into the are provoked, and, being not restrained nation’s interest, that it is not easy to by the exacting of the penalties, they sever them without unravelling the are fieere and more bent upon their whole. They are not excluded from the own ways than they would be otherwise. nobility, among the gentry they are not But it may be said the execution of laws a few; but none are of more inmportance of conformity raiseth the cry of persecu-than they in the trading part of the tion; and will not that be scandalous? people and those that live by indu-try, Not so scandalous as anarchy, schism, upon whose hands the business of the and eternal divisions and confusions both nation lies much. It hath been noted in church and state. Better that the that some who bear them no goodwill unruly should clamor, than that the have said that the very air of corregular should groan, and all should be porations is infested with their coutaundone.” P. 33. Another tract, “Short gion. And in whatsoever degree they Defence of the Church and Clergy of are high or low, ordinarily for good unEngland, 1679,” declares for union (in derstanding, steadiness, and sobriety, his own way), but against a comprehen-they are not inferior to others of the sion, and still more a toleration.’ It is same rank and quality, neither do they observable that, whereas the best em-want the national courage of Englishperors have made the severest laws men.” P. 23. against all manner of sectaries, Julian 1 Parl. Hist. iv.

1311. Ralph, 559 ithe apostate, the most subtle and bitter

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WILL. III. ATTEMPT AT COMPREHENSION. 169 of the peace, among whom a highchurch ardor was prevalent, crowding the jails with the pious confessors of puritanism.1 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 murmurs of the bigoted churchmen.2 It exempts from the penalties of existing statutes against separate conventicles, or absence fiom 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 fiom 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 Attempt at basis of the English church. The bill of compre-comprehension, though nearly such as had been intended hension. 1

Baxter; Neal; Palmer’s Non-con- tories wished to pass it only for seven formist’s Memorial. years. The highchurch pamphlets of 2 Parl. Hist. v.

263. Some of the the age grumble at the toleration.

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170 ATTEMPT AT COMPREHIENSION. CHAP. XV. 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 fiom 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.1 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.2

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.” 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 their 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.4 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 highchurch faction had soon seceded from this commission;5 and 1

Burnet. Parl. Hist. 184. the panegyrical passages. See both in 2 Pari.

Hist. 196. Wilkins’s Concilia, iv. 620.-1845.] 3 Parl. IIist. 212, 216. 6

[Ralph, ii. 167. The words high and 4 [The two houses of convocation dif-low church are said by Swift in the Exfered about their address to the king, aminer to have come in soon after the thanking him for his message about Revolution. And probably they were not church reform. The lower house thought in common use before. But I find’highthat proposed by the bishops too compli-church” named in a pamphlet of the mentary to the king and the Revolution; reign of Charles II. It is in the Harone was at last agreed upon, omitting leian Miscellany; but I have not got any more distinct reference. - 1845.1

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WILL. III. SCHISM OF NONJURORS. 171 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 ill-affected body 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.’ A similar relaxation of the terms of conformity would, in the reign of Elizabeth, or even at the time of the Schism Savoy conferences, have brought back so large a of the majority of dissenters that the separation of the nonjurors. remainder could not have afforded any color 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 favor 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 favorable 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, 1 Burnet. Ralph. But a better ac-be found in Kennet’s Comil. Hist. 557, count of what took place in the convoca-558, &c. tion and among the commissioners will

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172 SCHISM OF NONJURORS. CHAP. XV. at the hazCrd 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 organization 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 nonjurors. 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, if we may utter such a paradox, 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 nonjuring 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

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WILL. III. TOLERANT PRINCIPLES OF WILLIAM. 173 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.1 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 1 Leslie’s Case of the Regale and Pon-peer should not have two chaplains.] It tificate is a long, dull attempt to set up is full of enormous misrepresentation as the sacerdotal order above all civil power, to the English law. [Leslie, however. at least as to the exercise of its functions, like many other controversialists, wrote and especially to get rid of the appoint-impetuously and hastily for his immedi. ment of bishops by the crown, or, by ate purpose. There is a great deal of parity of reasoning, of priests by laymen. contradiction between this ” Case of the He is indignant even at laymen choosing Regale and Pontificate,”

published in their chaplains, and thinks they ought to 1700 or 1701, and his ” Case stated betake them from the bishop; objecting tween the Churches of Rome and Engalso to the phrase my chaplain, as if they land,”

in 1713. In the latter the whole were servants: “otherwise the expres-reasoning is strictly protestant: and sion is proper enough to say my chaplain, while, in the Case of the Regale, he had as I say my parish priest, my bishop, my set up the authority of the catholic church king, or my God; which argues my being as binding not only on individuals but on under their care and direction, and that national churches, he here even asserts I belong to them, not they to me: ” p. the right of private judgment, and denies 182. [In another place he says, a man that any general council ever did or can cannot serve two masters; therefore a exist.-1845.]

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174 LAWS AGAINST PAPISTS. CHAP. XV. 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! The tories, in their malignant hatred of our illustrious Laws against monarch, turned his connivance at popery into a Roman theme of reproach.1 It was believed, and probacatholics. bly 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.2 The admitted aim of this statute was to expel the 1 See Burnet (Oxf. iv. 409) and lord after Guiscard’s attempt to kill Mr. liarDartmouth’s note. ley, for enforcing the penal laws a’gainst 2 No opposition seems to have been Roman catholics, which was very scanmade in the house of commons; but we dalous, as tending to impute that crime to have a protest from four peers against it. them. Boyer’s reign of Anne, p. 429. Burnet, though he offers some shameful And in the reign of Geo. I. (1722) arguments in favor of the bill, such as 100,0001.

was levied by a pa:rticular act might justify any tyranny, admits that it on the estates of papists and nonjurors. contained some unreasonable severities, This was only carried by 188 to 172; sir and that many were really adverse to it. Joseph Jekyll, and Mr. Onslow. afterA bill proposed in 1705 to render the late wards speaker, opposing it, as well as act against papists effective was lost by lord Cowper in the other house. 9 G.

I. 119 to 43 (Parl. list. vi. 514); which c. 18. Parl. list. viii. 51,353.

It was shows that men were ashamed of what quite impossible that those who sincerely they had done. A proclamation, how-maintained the principles of toleration ever: was issued in 1711, immediately should long continue to make any ex

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WILL. III. LAWS AGAINST PAPISTS. 175 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 1001. 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.1 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 landholders 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; 2 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 ception; though the exception in this This was not long after the Revolution, instance was wholly on political grounds, though no precise date is given.

The and not out of bigotry, it did not the less protestants, conformists and non-concontravene all that Taylor and Locke had formists, of the same age, are made to taught men to cherish, amount to 2,585.930. This would be not 1 11 & 12 W. III. c. 4. It is hardly very far below the mark, as we know necessary to add that this act was re-from other sources; but the number of pealed in 1779. [According to a paper catholics appears incredibly small. - printed by Dalrymple, vol. ii. Appendix, 1845.] p. 12.

the number of papists in England 2 Butler’s Memoirs of Catholics, ii. 64.

above the age of sixteen was but 13,856.

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176 ACT OF SETTLEMENT. CHAP. XV bench, and the ferocity of the parliaments of Aix and Toulouse! The immediate settlement of the crown at the Revolution Act of extended only to the descendants of Anne and of settlement. 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.1 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.2 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 1 While the bill regulating the suc-secret reason, that they did not like to cession was in the house of commons, a recognize the continuance of any herediproviso was offered by Mr.

Godolphin, tary right. It was rejected by 179 to that nothing in this act is intended to be 125. Parl. Hist. v. 249. The lords’ drawn into example or consequence here-amendment in favor of the princess Suafter, to prejudice the right of any prot-phia was lost without a division. Id.

339. estant prince or princess in their heredi-2 [It is asserted by lord Dartmouth, tary succession to the imperial crown of in a note on Burnet, iv. 520, that some these realms. This was much opposed of the whigs had a project of bringing in by the whigs; both because it tended to the house of Hanover at once on the let in the son of James II. if he should king’s death. But no rational man could become a protestant, and for a more have thought of this. -1845.]

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WILL. III. ACT OF SETTLEMENT. 177 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 descendants 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.1 According to the tenor and intention of the act of settlement, 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.2 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 Henrys illustrate the almost unrivalled splendor 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. 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 1 The duchess of Savoy put in a very Blackstone, who treats the princess Sophia foolish protest against anything that as a new stirps of the royal family. But should be done to prejudice her right. it is probable that those who drew the Ralph, 924.

bill meant to show the world that we 2 [It might be urged against this, that deviated as little as circumstances would the act of settlement declares, as well as admit from the hereditary line. The enacts, the princess Sophia to be ” next in vote, in fact, of the convention parliament succession, in the protestant line, to the in January, 1689, that the throne was imperial crown and dignity,” &c., reciting then vacant, put an end, according to any also her descent from James I. But, if legal analogies, to the supposition of a we take into consideration the public subsisting reversionary right. Nor do I history of the transaction, and the neces-conceive that many persons conversant sity which was felt for a parliamentary with our constitution imagine any one to settlement, we shall be led to think that have a right to the crown. on the happily this was merely the assertion of a fact, most improbable supposition of the ex and not a recognition of an existing right. tinction of our royal family. -1845.] This also seems to be the opinion of VOL. III. 12

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178 LIMITATIONS OF PREROGATIVE CHAP. XV. on the contingency that its heir might embrace the protestant religion.1 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.2 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 settleinent, 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 Limitations possession of this crown shall join in communtive con-ion with the church of England as by law estabtained in it. 1i lished. 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 1 [” The whigs,”’

says Bolingbroke, here.” State of Parties at Accession of ” had appeared zealous for the protestant George I. -1845.] succession, when king William proposed 2 [It was resolved in a committee of it after the death of the duke of Glouces-the whole house, and agreed to by the ter. The tories voted for it then; and house, that, ” for the preserving the peace the acts that were judged necessary to and happiness of this kingdom and the secure it-some of them at least-were security of the protestant religion by law promoted by them. Yet were they not established. it is absolutely necessary a thought, nor did they affect, as the others further declaration be made of the limidid, to be thought extremely fond of it.

tation and succession of the crown in the King William did not come into this protestant line, after his majesty and the measure till he found, upon trial, that princess, and the heirs of their bodies there was no other safe and practicable; respectively. Resolved that farther proand the tories had an air of coming into vision be first made for security of the it for no other reason. Besides which, it rights and liberties of the people.” Comis certain that there was at that time a mons’ Journals, 2d March, 1700-1. - much greater leaven of jacobitism in the 1845.] tory camp than at the time spoken of

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WILL. III. IN THE ACT OF SETTLEMENT. 179 by this act shall take effect, all matters and things relating to the wellgoverning of this kingdom, which are properly cognizable 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 naturalized 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.1 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.2 The third article was repealed 1 12 & 13 W.

III. c. 2. justly answered that, although, in case 2 It was frequently contended in the Hanover should be attacked on the ground reign of George II. that subsidiary trea-of a German quarrel, unconnected with ties for the defence of Hanover, or rather English politics, we were not bound to such as were covertly designed for that defend her, yet, if a power at war with and no other purpose, as those with England should think fit to consider that Russia and Hesse Cassel in 1755. were at electorate as part of the king’s dominions least contrary to the spirit of the act of (which, perhaps, according to the law of settlement. On the other hand it was nations might be done), our honor must

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180 PRIVY COUNCIL SUPERSEDED C.AP. XV. 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.l A very remarkable alteration that had been silently wrought in the course of the executive government council gave rise to the fourth of the remedial articles in superseded the act of settlement. According to the original y a cabine. 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 councillors 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 larger 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 recognized as its sworn and notorious councillors. 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.“2 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 require that it should be defended against 1 1 G. I. c. 51. such an attack. This is true; and yet it 2 Life of Clarendon, 819. [It was not shows very forcibly that the separation of usual to have any privy councillors exthe two ought to have been insisted upon, cept great officers of state, and a few since the present connection engages persons of high rank. This was rather Great Britain in a very disadvantageous relaxed after the Restoration; but Clarmode of carrying on its wars, without endou opposed sir William Coventry’s any compensation of national wealth or introduction into the council on this aoc honor, except indeed that of employing count. P.

565.-1845.] occasionally in its service a very brave ind efficient body of troops.- 1827.

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WILL. III. BY A CABINET. 181 little less arbitrary, so far at least as private rights were con. cerned, 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 shortlived 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. During the reign of William this distinction of Exclusion the cabinet from the privy council, and the exclu-of placemen sion of the latter from all business of state, became sioners from more fully established. This, however, produced parliament 1 [Trenchard, in his Short History of council were synonymous; others that Standing Armies, published about 1698, there might be a difference. Peterborand again in 1731, says, “Formerly all ough said, “he had heard a distinction matters of state and discretion were de-between the cabinet council and the privy bated and resolved in the privy council, council; that the privy council were such where every man subscribed his opinion, as were thought to know everything, and and was answerable for it. The late king knew nothing, and those of the cabinet Charles was the first who broke this most council thought nobody knew anything excellent part of our constitution, by but themselves.” Parl. Hist. vi. 971.

settling a cabal or cabinet council, where At a meeting of the privy council, all matters of consequence were debated April 7, 1713, the peace of Utrecht was and resolved, and then brought to the laid before them, but merely for form’s privy council to be confirmed. P. 9. - sake, the treaty being signed by all the 1845.] powers four days afterwards. Chief-jus2, The method is this,” says a mem-tice Parker, however, and lord Cholmonber in debate: “things are concerted in deley were said to have spoken against the cabinet, and then brought to the it. Id. 1192, from Swift’s Journal.

council; such a thing is resolved in the If we may trust a party-writer at the cabinet, and brought and put on them beginning of Anne’s reign, the archfor their assent, without showing any of bishop of Canterbury was regularly a the reasons. That has not been the member of the cabinet council. Public method of England. It this method be, Spirit of the Whigs, in Somers Tracts, you will never know who gives advice.” ix. 22. But probably the fact was that Parl. Hist. v. 731. [In the lords’ house, he occasionally was called to their meetJan. 1711, ” the earl of Scarsdale proposed ings, as took place much later. Coxe’s the following question: That it appears Memoirs of Walpole, i. 637, et alibi. by the earl of Sunderland’s letter to Mr. Lord Mansfield said in the house of Stanhope tnat the design of an offensive lords, in 1775, Parl. Hist. xviii. 274, that war in Spain was approved and directed he had been a cabinet minister part of by the cabinet council.” But the mover the late reign and the whole of the presafterwards substituted the word “minis-ent; but there was a nominal and an ters” for “cabinet council,” as better efficient cabinet, and a little before lord known. Lord Cowper said they were Rockingham’s administration he had both terms of an uncertain signification, asked the king’s leave not to act in the and the latter unknown to our law. Some latter. -1845.] Contended that ministers and cabinet In sir Humphrey Mackworth’s [ol

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182 EXCLUSION OF PLACEMEN CHAP. XV. 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 recognized, it was silently eluded by the concealment in which the objects of its inquiry could wrap themselves. Thus, in the instance of a treaty which the house of commons might deem mischievous and dishonorable, 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 the 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 councillors, 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.1 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 perhaps Mr.

Harley’s] Vindication of vassed in a remarkable discussion within the Rights of the Commons of England, our memory, on the introduction of the 1701, Somers Tracts, xi. 276, the con-late chief-justice of the king’s bench into stitutional doctrine is thus laid down, that select body; Mr.

Fox strenuously according to the spirit of the recent act denying the proposition, and lord Castleof settlement: ” As to the setting of reagh, with others now living, maintainthe great seal of England to foreign alli-ing it. Parl. Debates, A.D. 1806. I cannot ances, the lord chancellor, or lord keeper, possibly comprehend how an article of for the time being, has a plain rule to fol-impeachment, for sitting as a cabinet low; that is, humbly to inform the king minister, could be drawn; nor do I conthat he cannot legally set the great seal ceive that a privy councillor has a right of England to a matter of that conse-to resign his place at the board, or even quence unless the same be first debated to absent himself when summoned; so and resolved in council; which method that it would be highly unjust and illegal being observed, the chancellor is safe, and to presume a participation in culpable the council answerable.” -P. 293.

measures from the mere circumstance of 1 This very delicate question as to the belonging to it. Even if notoriety be a responsibility of the cabinet, or what is ground, as has been sometimes contended, commonly called the ministry, in solidum, for impeachment, it cannot be sufficient If I may use the expression, was can-for conviction.

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WILL. HI. FROM PARLIAMENT. 183 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 burden 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 Oxford 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 endeavored 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 shrank back from so definite a responsibility, they procured its repeal a very few years afterwards.l 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 1., would have been determined in council. But proclamations and orders still emanate, as the law requires, from the privy council; and on some rare 1 4

Anne. c. 8. 6 Anne, c. 7.

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184 FOREIGNERS EXCLUDED FROM OFFICE. CHAP. XV. occasions, even of late years, matters of domestic policy have been referred to their advice. It is generally understood, however, that no councillor is to attend, except when summoned 1 so that, unnecessarily numerous as the council has become, 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 councillor 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 favorites with lucrative offices.2 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, 1 This is the modern usage, but of its ceived without a clause disqualifying the origin I cannot speak. On one remark-party from sitting in parliament, &c., able occasion, while Anne was at the ” for the better preserving the said clause point of death, the dukes of Somerset and in the said act entire and inviolate.”

Argyle went down to the council-cham- This provision, which was rather superber without summons to take their seats; erogatory, was of course intended to show but it seems to have been intended as an the determination of parliament not to be unexpected manoeuvre of policy.

governed, ostensibly at least, by foreigners 2 It is provided by 1 G. I.

st. 2, c. 4, under their foreign master. that no bil of naturalization shall be re

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WILL. III. BRIBES TO THE OPPOSITION. 185 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 secretservice money; which was pretty well known, and sometimes proved, to be disposed of, in great part, among the members of both houses.’ 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 1 Parl. Hist. 807, 840.

Burnet says, Guy, secretary of the treasury, another p. 42, that sir John Trevor, a tory, first of Charles II.‘s court, was expelled the put the king on this method of corrup-house on a similar imputation. Id. 886.

tion. Trevor himself was so venal that Lord Falkland was sent to the Tower for he received a present of 1000 guineas begging 20001. of the king. Id.

841. A from the city of London, being then system of infamous peculation among the speaker of the commons, for his service officers of government came to light in carrying a bill through the house; through the inquisitive spirit of parliaand, upon its discovery, was obliged to ment in this reign; not that the nation put the vote that he had been guilty of was worse and more corrupt than under a high crime and misdemeanor. This the Stuarts, but that a profligacy which resolution being carried, he absented had been engendered and had flourished himself from the house, and was expelled. under their administration was now Parl. Hist. 900.

Commons’ Journals, 12 dragged to light and punishment. Long March, 1694-5.

The duke of Leeds, that sessions of parliament and a vigilant veteran of secret iniquity, was discovered party-spirit exposed the evil, and have about the same time to have taken bribes finally in a great measure removed it; from the East India Company, and was though Burnet’s remark is still not impeached in consequence. I say diswholly obsolete. “The regard,” says covered, for there seems little or no that honest bishop,”

that is shown to the doubt of his guilt. The impeachment, members of parliament among us makes however, was not prosecuted for want of that few abuses can be inquired into o0 evidence. Parl. Hist. 881, 911, 933.

discovered.”

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186 CONNECTION OF MINISTERS CHAP. XV 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.l 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 counsels 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 1 Parl. Hist. 748, 829. The house re-and impartial proceedings in parliament, solved, “that whoever advised the king which tended so much to the clearing not to give the royal assent to the act the reputation of this house, after their touching free and impartial proceedings having so freely voted to supply the in parliament, which was to redress a public occasions.” The king gave a grievance, and take off a scandal upon courteous but evasive answer, as indeed the proceedings of the commons in par-it was natural to expect; but so great a liament, is an enemy to their majesties flame was raised in the commons, that it and the kingdom.”

They laid a reprewas moved to address him for a further sentation before the king, showing how answer. which however there was still a few instances have been in former reigns sense of decorum sufficient to prevent. of denying the royal assent to bills for Though the particular provisions of redress of grievances, and the great grief this bill do not appear, I think it probof the commons “for his not having given able that it went too far in excluding the royal assent to several public bills, military as well as civil officers. and particularly the bill touching free

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WILL. III. WITH PARLIAMENT. 181 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.1 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 endeavor of the opposition, or, as it was usually 1 [The tories introduced a clause, ac-established, sees little to object to in the cording to Burnet, into the oath of abjura-phrase “government,” which may be tion, to maintain the government by king, taken in a large sense. Burnet, however, lords, and commons. This was rejected as Ralph points out, has misrepresented by the lords; and Burnet calls it a bare-the clause. The words were, “
constitufaced republican notion, which was wont tion and government by king, lords, and to be condemned as such by the same commons, as by law established: ” which persons who now pressed it.” The lords he conjectures to be rather levelled at and commons, he observes, are indeed “barefaced republican notions” than part of the constitution and the legis-borrowed from them. Ralph, ii. 1018. lative body, but not of the government.

Burnet’s memory was too deceitful to be Vol. iv. p. 538. But speaker Onslow, trusted without reference to books; yet coming half a century later, after the he seems rarely to have made any.whig practice and theory had become 1845.]

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188 PLACEMEN AND PENSIONERS CHAP. XV, 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 unbiased 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.1 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.2 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.3 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 1 4 & 5 W. & M. c. 21.

free and impartial proceedings in parlia2 11 & 12 W. III. c. 2, ~ 50.

ment, and endanger the liberties of the 3 The house of commons introduced commons of England. Those on the into the act of security, as it was called, lords’ side gave their reasons to the cona long clause, carried on a division by trary at great length, Feb. 11. The com167 to 160, Jan. 24, 1706, enumerating mons determined, Feb. 18, to insert the various persons who should be eligible to provision vacating the seat of a member parliament; the principal officers of state, accepting office; and resolved not to insist the commissioners of treasury and ad-on their disagreements as to the main miralty, and a limited number of other clause. Three protests were entered in placemen. The lords thought fit torepeal the house of lords against inserting the the whole prohibitory enactment. It was word ” repealed ” in reference to the proresolved in the commons, by a majority hibitory clause, instead of regulated and of 205 to 183, that they would not agree altered,” all by tory peers. It is observtu this amendment. A conference accord-able that, as the provision was not to ingly took place, when the managers of take effect till the house of Hanover the commons objected, Feb. 7, that a should succeed to the throne, the sticktotal repeal of that provision would admit lers for it might be full as much influsuch an unlimited number of officers to enced by their illwill to that family as by it in their house as might destroy the their zeal for liberty.

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WILL. III. EXCLUDED FROM PARLIAMENT. 189 October, 1705, shall be capable of being elected or reilected 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.1 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.2 It had been the practice of the Stuarts, especially in the last years of their dynasty, to dismiss judges, with-Independ out seeking any other pretence, who showed any ence of disposition to thwart government in political pros-udges. ecutions. The general behavior 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 behavior, 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.8 We owe this important provision to the act of 1 4 Anne, c. 8. 6 Anne, c. 7. relaxing many provisions which had been 2 This, it is to be observed was written required in very different times. before the reform bill of 132, which cre-3 Burnet, 86. It was represented to ated a necessity, if any sort of balance is the king, he says, by some of the judges to be preserved in our constitution, of themselves, that it was not fit they should strengthening the executive power, and be out of all dependence on the court.

consequently dictated the expediency of

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190 OATH OF ABJURATION. CHAP. XV. 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.1 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.2 In the following session, a new parliament having been Oath of assembled, in which the tory faction had less influabjuration. ence than in the last, and Louis XIV. having in the mean time 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 hightreason; a measure absurd as a law, but politic as a denunciation of perpetual enmity.3 It was 1 It was originally resolved that they peers, all whigs, entered a protest. Parl.

should be removable on the address of list. 482. either house, which was changed after-3 13 W. III. c. 3. The lords introduced wards to both houses. Comm. Journ. an amendment into this bill to attaint 12th March and 10th May. also Mary of Este, the late queen of 2 It was proposed in the lords, as a James II. But the commons disagreed, clause in the bill of rights, that pardons on the ground that it might be of dangerupon an impeachment should be void, ous consequence to attaint any one by an but lost by 50 to 17; on which twelve amendment, in which case such due con

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WILL. III. OATH OF ABJURATION. 191 made hightreason 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 school-masters, acknowledging William as lawful and rightful king, and denying any right or title in the pretended prince of Wales.1 The tories, and especially lord Nottingham, had earnestly contended, in the beginning of the king’s reign, against those words in 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.2 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 highchurch 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 nor diminish the numbers of the Jacobites; and I must confess that, of all sophistry that weakens moral obligation, that is the sideration cannot be had as the nature of 2 Sixteen lords, including two bishops, an attainder requires. The lords, after a Compton and Sprat, protested against the conference, gave way; but brought in a bill containing the abjuration oath. The separate bill to attaint Mary of Este, first reason of their votes was afterwards which passed with a protest of the tory expunged from the Journals by order of peers. Lords’

Journals, Feb. 6, 12, 20, the house. Lords’ Journals, 24th Feb. 1701-2. 3d March, 1701-2. 1 13 W. III. c. 6.

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192 OATH OF ABJURATION. CHAP. XV. 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.1 1 Whiston mentions that Mr. Baker. but the oath of abjuration, coming out of St. John’s. Cambridge, a worthy and the next year, had such expressions as he learned man, as well as others of the col-still scrupled. Whiston’s Memoirs. Biog. lege, had thoughts of taking the oath of Brit. (Kippis’s edition), art. BAKEi. allegiance on the death of king James;

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ANNE, GEO. I. & II. END OF CONTEST WITH THE CROWN. 193 CHAPTER XVI. ON THE

STATE OF THE CONSTITUTION IN THE REIGNS OF ANNE, GEORGE I., AND GEORGE II.

Termination of Contest between the Crown and Parliament-Distinctive Principles of Whigs and Tories - Changes effected in these by Circumstances - Impeachment of Sacheverell displays them again-Revolutions in the Ministry under Anne - War of the Succession - Treaty of Peace broken off-Renewed again by the Tory Government -Arguments for and against the Treaty of Utrecht - the Negotiation mismanaged-Intrigues of the Jacobites-Some of the Ministers engage in them -Just Alarm for the Hanover Succession -Accession of George I. - Whigs come into Power-Great Disaffection in the Kingdom - Impeachment of Tory Ministers - Bill for Septennial Parliaments - Peerage Bill - Jacobitism among the Clergy-Convocation - Its Encroachments - Hoadley - Convocation no longer suffered to sit-Infringements of the Toleration by Statutes under Anne-They are repealed by the Whigs-Principles of Toleration fully established-Banishment of Atterbury -Decline of the Jacobites - Prejudices against the Reigning Family-Jealousy of the Crown-Changes in the Constitution whereon it was founded-Permanent Military Force - Apprehensions from it -

Establishment of Militia -Influence over Parliament by Places and Pensions - Attempts to restrain itPlace Bill of 1743-Secret Corruption-Commitments for Breach of Privilege-of Members for Offences-of Strangers for Offences against Members or for Offences against the House-Kentish Petition of 1701 -Dispute with Lords about Aylesbury Election-Proceedings against Mr. Murray in 1751-Commitments for Offences unconnected with the House  Privileges of the House not controllable by Courts of Law -Danger of stretching this too far -Extension of Penal Laws - Diminution of Personal Authority of the Crown - Causes of this-Party Connections-Influence of Political Writings -Publication of Debates -Increased Influence of the Middle Ranks. THE act of settlement was the seal of our constitutional laws, the complement of the Revolution itself and Termination the bill of rights, the last great statute which of the conrestrains the power of the crown, and manifests, in tet betwen any conspicuous degree, a jealousy of parliament and parliain behalf of its own and the subject’s privileges. The battle had been fought and gained; the statute-book, as it becomes more voluminous, is less interesting in the history of our constitution; the voice of petition, complaint, or remonstrance is seldom to be traced in the Journals; the crown in return desists altogether, not merely from the threatening or objurgatory tone of the Stuarts, but from that dissatisfaction sometimes apparent in the language of William; and the vessel seems riding in smooth water, moved by other impulses, and liable perhaps to other dangers, than those of the VOL. III. 13

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194 DISTINCTIVE PRINCIPLES OF CHAP. XVI. ocean-wave and the tempest. The reigns, accordingly, of Anne, George I., and George II., afford rather materials for dissertation, than consecutive facts for such a work as the present; and may be sketched in a single chapter, though by no means the least important, which the reader’s study and reflection must enable him to fill up. Changes of an essential nature were in operation during the sixty years of these three reigns, as well as in that beyond the limits of this undertaking, which in length measures them all; some of them greatly enhancing the authority of the crown, or rather of the executive government, while others had so opposite a tendency, that philosophical speculators have not been uniform in determining on which side was the sway of the balance. No clear understanding can be acquired of the political history of England without distinguishing, with some accuracy of definition, the two great parties of whig and tory. But this is not easy; because those denominations, being sometimes applied to factions in the state intent on their own aggrandizement, sometimes to the principles they Distinctive principles entertained or professed, have become equivocal, of whigs and do by no means, at all periods and on all and tories. occasions, present the same sense; an ambiguity which has been increased by the lax and incorrect use of familiar language. We may consider the words, in the first instance, as expressive of a political theory or principle, applicable to the English government. They were originally employed at the time of the bill of exclusion, though the distinction of the parties they denote is evidently at least as old as the long parliament. Both of these parties, it is material to observe, agreed in the maintenance of the constitution; that is, in the administration of government by an hereditary sovereign, and in the concurrence of that sovereign with the two houses of parliament in legislation, as well as in those other institutions which have been reckoned most ancient and fundamental. A favorer of unlimited monarchy was not a tory, neither was a republican a whig. Lord Clarendon was a tory, Hobbes was not; bishop Hoadley was a whig, Milton was not. But they differed mainly in this; that to a tory the constitution, inasmuch as it was the constitution, was an ultimate point, beyond which he never looked, and from which he thought it altogether impossible

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ANNE, GEO. I. & II. WHIGS AND TORIES. 195 to swerve; whereas a whig deemed all forms of government subordinate to the public good, and therefore liable to change when they should cease to promote that object. Within those bounds which he, as well as his antagonist, meant not to transgress, and rejecting all unnecessary innovation, the whig had a natural tendency to political improvement, the tory an aversion to it. The one loved to descant on liberty and the rights of mankind, the other on the mischiefs of sedition and the rights of kings. Though both, as I have said, admitted a common principle, the maintenance of the constitution, yet this made the privileges of the subject, that the crown’s prerogative, his peculiar care. Hence it seemed likely that, through passion and circumstance, the tory might aid in establishing despotism, or the whig in subverting monarchy. The former was generally hostile to the liberty of the press, and to freedom of inquiry, especially in religion; the latter their friend. The principle of the one, in short, was amelioration; of the other, conservation. But the distinctive characters of whig and tory were less plainly seen, after the Revolution and act of settlement, in relation to the crown, than to some other effected in parts of. our polity. The tory was ardently, and these by cirin the first place, the supporter of the church in as much preeminence and power as he could give it. For the church’s sake, when both seemed as it were on one plank, he sacrificed his loyalty; for her he was always ready to persecute the catholic, and if the times permitted not to persecute, yet to restrain and discountenance the nonconformist. He came unwillingly into the toleration which the whig held up as one of the great trophies of the Revolution. The whig spurned at the haughty language of the church, and treated the dissenters with moderation, or perhaps with favor. This distinction subsisted long after the two parties had shifted their ground as to civil liberty and royal power. Again, a predilection for the territorial aristocracy, and for a government chiefly conducted by their influ ence, a jealousy of new men, of the mercantile interest, of the commonalty, never failed to mark the genuine tory. It has been common to speak of the whigs as an aristocratical faction. Doubtless the majority of the peerage from the Revolution downwards to the death of George II. were of that denomination.

But this is merely an instance wherein

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196 DISTINCTIVE PRINCIPLES OF CHAP. XVL the party and the principle are to be distinguished. The natural bias of the aristocracy is towards the crown; but, except in most part of the reign of Anne, the crown might be reckoned with the whig party. No one who reflects on the motives which are likely to influence the judgment of classes in society would hesitate to predict that an English house of lords would contain a larger proportion of men inclined to the tory principle than of the opposite school; and we do not find that experience contradicts this anticipation. It will be obvious that I have given to each of these political principles a moral character; and have considered them as they would subsist in upright and conscientious men, not as we may find them “in the dregs of Romulus,”

suffocated by selfishness or distorted by faction. The whigs appear to have taken a far more comprehensive view of the nature and ends of civil society; their principle is more virtuous, more flexible to the variations of time and circumstance, more congenial to large and masculine intellects. But it may probably be no small advantage, that the two parties, or rather the sentiments which have been presumed to actuate them, should have been mingled, as we find them, in the complex mass of the English nation, whether the proportions may or not have been always such as we might desire. They bear some analogy to the two forces which retain the planetary bodies in their orbits; the annihilation of one would disperse them into chaos, that of the other would drag them to a centre.

And, though I cannot reckon these old appellations by any means characteristic of our political factions in the nineteenth century, the names whig and tory are often well applied to individuals. Nor can it be otherwise; since they are founded not only on our laws and history, with which most have some acquaintance, but in the diversities of condition and of moral temperament generally subsisting among mankind. It is however one thing to prefer the whig principle, another to justify, as an advocate, the party which bore that name. So far as they were guided by that principle, I hold them far more friendly to the great interests of the commonwealth than their adversaries. But, in truth, the peculiar circumstances of these four reigns after the Revolution, the spirit of faction, prejudice, and animosity, above all, the

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AxNE, GEO. I. & II. WHIGS AND TORIES. 197 desire of obtaining or retaining power, which, if it be ever sought as a means, is soon converted into an end, threw both parties very often into a false position, and gave to each the language and sentiments of the other; so that the two principles are rather to be traced in writings, and those not wholly of a temporary nature, than in the debates of parliament. In the reigns of William and Anne, the whigs, speaking of them generally as a great party, had preserved their original character unimpaired far more than their opponents. All that had passed in the former reign served to humble the tories, and to enfeeble their principle. The Revolution itself, and the votes upon which it was founded, the bill of recognition in 1690, the repeal of the non-resisting test, the act of settlement, the oath of abjuration, were solemn adjudications as it were, against their creed.

They took away the old argument, that the letter of the law was on their side. If this indeed were all usurpation, the answer was ready; but those who did not care to make it, or by their submission put it out of their power, were compelled to sacrifice not a little of that which had entered into the definition of a tory. Yet even this had not a greater effect than that systematic jealousy and dislike of the administration, which made them encroach, according to ancient notions, and certainly their own, on the prerogative of William. They learned in this no unpleasing lesson to popular assemblies, to magnify their own privileges and the rights of the people. This tone was often assumed by the friends of the exiled family, and in them it was without any dereliction of their object. It was natural that a jacobite should use popular topics in order to thwart and subvert an usurping government. His faith was to the crown, but to the crown on a right head. In a tory who voluntarily submitted to the reigning prince, such an opposition to the prerogative was repugnant to the maxims of his creed, and placed him, as I have said, in a false position. This is of course applicable to the reigns of George I. and II., and in a greater degree in proportion as the tory and jacobite were more separated than they had been perhaps under William. The tories gave a striking proof how far they might be brought to abandon their theories, in supporting an address to the queen that she would invite the princess Sophia to take up her residence in England; a measure so unnatural

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198 WHIGS ANTD TORIES. CHAP. XVI as well as imprudent, that some have ascribed it to a subtilty of politics which I do not comprehend. But we need not, perhaps, look farther than to the blind rage of a party just discarded, who, out of pique towards their sovereign, made her more irreconcilably their enemy, ard, while they hoped to brand their opponents with inconsistency, forgot that the imputation would redound with tenfold force on themselves. The whigs justly resisted a proposal so little called for at that time; but it led to an act for the security of the succession, designating a regency in the event of the queen’s decease, and providing that the actual parliament, or the last if none were in being, should meet immediately, and continue for six months, unless dissolved by the successor.1 In the conduct of this party, generally speaking, we do not, I think, find any abandonment of the cause of liberty. The whigs appear to have been zealous for bills excluding placemen from the house, or limiting their numbers in it; and the abolition of the Scots privy council, an odious and despotic tribunal, was owing in a great measure to the authority of lord Somers.2 In these measures however the tories generally cooperated; and it is certainly difficult in the history of any nation to separate the influence of sincere patriotism 1 4 Anne, c. 8; Parl. Hist.

457, et post; Cunningham must have had some founBurnet, 429. dation for his circumstantial assertion. 2 6 Anne, c. 6; Parl. Hist. 613; Som-The ballot, however, was probably meant erville, 296; Hardw. Papers, ii. 473.

to be in parliament, not, or not wholly, in Cunningham attests the zeal of the whigs elections. for abolishing the Scots privy council, [On searching the Journals I find a though he is wrong in reckoning lord bill ” to prevent bribery, corruption, and Cowper among them, whose name appears other indecent practices, in electing of in the protest on the other side: ii. 135, members to serve in parliament,”’ ordered &c. The distinction of old and modern to bebroughtin, 17th Jan. 1708-9. Nothwhigs appeared again in this reign: the ing further appears in this session; but former professing, and in general feeling, in the next a bill with the same title is a more steady attachment to the princi-brought in, 15th Feb. 1709-10, and read a ples of civil liberty. Sir Peter King. sir second time, Feb.

18th; but no more apJoseph Jekyll, Mr. Wortley, Mr. Hamp-pears about it.

Mr. Wortley’s name does den, and the historian himself, were of not appear among those who were ordered this description; and consequently did to bring in either of these bills. not always support Godolphin. P. 210, I have also found in a short tract, en. &c. Mr. Wortley brought in a bill, which titled ” A Patriot’s Proposal to the People passed the commons in 1710, for voting of England,” 1705, a recommendation of by ballot. It was opposed by Wharton election by ballot. It is highly democratand Godolphin in the lords, as dangerous ical in its principle, but came a full cento the constitution, and thrown out. tury too soon. The proceedings of the Wortley, he says, went the next year to house of commons in the Aylesbury case Venice, on purpose to inquire into the seem to have produced it.

effects of the ballot, which prevailed uui-It seems, therefore, that I was mistaken versally in that republic. P. 285. I have in supposing the bill mentioned by Cunsince learned that no trace of such a bill ningham to have respected the mode of can be found in the Journals; yet I think voting in parliament. -1845.]

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ANNE, GEO. I. & II. IMPEACHMENT OF SACHEVERELL. 199 from that of animosity and thirst of power. But one memorable event in the reign of Anne gave an opportu-Impeachnity for bringing the two theories of government ment of Sacheverell into collision, to the signal advantage of that which displays the whigs professed; I mean the impeachment of them again. Dr.

Sacheverell. Though, with a view to the interests of their ministry, this prosecution was very unadvised, and has been deservedly censured, it was of high importance in a constitutional light, and is not only the most authentic exposition, but the most authoritative ratification, of the principles upon which the Revolution is to be defended.1 The charge against Sacheverell was not for impugning what was done at the Revolution, which he affected to vindicate, but for maintaining that it was not a case of resistance to the supreme power, and consequently no exception to his tenet of an unlimited passive obedience. The managers of the impeachment had, therefore, not only to prove that there was resistance in the Revolution, which could not of course be sincerely disputed, but to assert the lawfulness, in great emergencies, or what is called in politics, necessity of taking arms against the law - a delicate matter to treat of at any time, and not least so by ministers of state and law officers of the crown, in the very presence, as they knew, of their sovereign.2 We cannot praise too highly their speeches 1 Parl. Hist. vi. 805; Burnet, 537; prince beyond seas, meaning the king, State Trials, xv. 1. It is said in Coxe’s and not the queen, had the legal title to Life of Marlborough, iii. 141, that Marl-it, she having no claim thereto but what borough and Somers were against this she owed to the people; and that by the prosecution. This writer goes out of his Revolution principles, on which the conway to make a false and impertinent restitution was founded, and to which the mark on the managers of the impeach-laws of the land agreed, the people might ment, as giving encouragement by their turn out or lay aside their sovereigns as speeches to licentiousness and sedition. they saw cause. Though, no doubt of Id. 166. it, there was a great deal of truth in these [Cunningham says that Marlborough assertions, it is easy to be believed that was for prosecution at law, rather than the queen was not well pleased to hear impeachment; Somers against both: ii. them maintained, even in her own pres277. Harley spoke against the impeach-ence and in so solemn a manner, before ment, as unworthy of the house, but con-such a great concourse of her subjects. demned Sacheverell’s sermon as foolish, For, though princes do cherish these and calling it a “circumgyration of incoherent the like doctrines whilst they serve as words; ” which, the historian says, some the means to advance themselves to a thought was the character of his own crown, yet, being once possessed thereof, speech. Vol. ii. p. 285.-1845.] they have as little satisfaction in them as 2 “The managers appointed by the those who succeed by an hereditary unhouse of commons,” says an ardent jaco-questionable title.”

Lockhart Papers, i. bite, “behaved with all the insolence 312. imaginable.

In their discourse they It is probable enough that the last reboldly asserted, even in her majesty’s mark has its weight, and that the queen presence, that, if the right to the crown did not wholly like the speeches of some was hereditary and indefeasible, the of the managers; and yet nothing can

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200 IMPEACHMENT OF SACHEVERELL. CHAP. XVL upon this charge: some shades, rather of discretion than dis. cordance, may be perceptible; and we may distinguish the warmth of Lechmere, or the openness of Stanhope, from the caution of Walpole, who betrays more anxiety than his colleagues to give no offence in the highest quarter; but in every one the same fundamental principles of the whig creed, except on which indeed the impeachment could not rest, are unambiguously proclaimed. ” Since we must give up our right to the laws and liberties of this kingdom,” says sir Joseph Jekyll, “or, which is all one, be precarious in the enjoyment of them, and hold them only during pleasure, if this doctrine of unlimited non-resistance prevails, the commons have been content to undertake this prosecution.” —

” The doctrine of unlimited, unconditional passive obedience,” says Mr.

Walpole, “was first invented to support arbitrary and despotic power, and was never promoted or countenanced by any government that had not designs sometime or other of making use of it.” 2 And thus general Stanhope still more vigorously: ” As to the doctrine itself of absolute non-resistance, it should seem needless to prove by arguments that it is inconsistent with the law of reason, with the law of nature, and with the practice of all ages and countries. Nor is it very material what the opinions of some particular divines, or even the doctrine generally preached in some particular reigns, may have been concerning it. It is sufficient for us to know what the practice of the church of England has been, when it found itself oppressed. And indeed one may appeal to the practice of all churches, of all states, and of all nations in the world, how they behaved themselves when they found their civil and religious constitutions invaded and oppressed by tyranny. I believe we may further venture to say that there is not at this day subsisting any nation or government in the world, whose first original did not receive its foundation either from resistance or compact; and, as to our purpose, it is equal if the latter be admitted.

For wherever compact is admitted, there must be admitted likewise a right to defend the rights accruing by such compact. To argue the municipal laws of a country in this case is idle. Those laws be more certain than that she owed her royal ear; and that the genuine loyalists crown in the first instance, and the pres-would soon have lodged her in the Tower ervation of it at that very time, to those 1 State Trials, xv. 95. insolent doctrines which wounded her 2 Id. 116.

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ANNE, GEO. I. & II. IMPEACHMENT OF SACHEVERELL. 201 were only made for the common course of things, and can never be understood to have been designed to defeat the end of all laws whatsoever; which would be the consequence of a nation’s tamely submitting to a violation of all their divine and human rights.“1 Mr. Lechmere argues to the same purpose in yet stronger terms.2 But, if these managers for the commons were explicit in their assertion of the whig principle, the counsel for Sacheverell by no means unfurled the opposite banner with equal courage. In this was chiefly manifested the success of the former. His advocates had recourse to the petty chicane of arguing that he had laid down a general rule of obedience without mentioning its exceptions, that the Revolution was a ease of necessity, and that they fully approved what was done therein. They set up a distinction, which, though at that time perhaps novel, has sometimes since been adopted by tory writers; that resistance to the supreme power was indeed utterly illegal on any pretence whatever, but that the supreme power in this kingdom was the legislature, not the king; and that the Revolution took effect by the concurrence of the lords and commons.8 This is of itself a descent from the high ground of toryism, and would not have been held by the sincere bigots of that creed. Though specious, however, the argument is a sophism, and does not meet the case of the Revolution.

For, though the supreme power may be said to reside in the legislature, yet the prerogative within its due limits is just as much part of the constitution, and the question of resistance to lawful authority remains as before. Even if this resistance had been made by the two houses of parliament, it was but the case of the civil war which had been explicitly condemned by more than one statute of Charles II. But, as Mr. Lechmere said in reply, it was undeniable that the lords and commons did not join in that 1 State Trials, 127. and unlimited doctrine of non-resistance, 2

Id. 61. and not condemn the revolution. And 8 State Trials, 196, 229. It is observed the truth on it is, these are so inconby Cunningham. p. 286, that Sacheverell’s sistent with one another, that the chief counsel, except Phipps, were ashamed of arguments alleged in this and other parhim; which is really not far from the allel cases came to no more than this: ease. “The doctor,” says Lockhart, that the revolution was an exception from “employed sir Simon, aiferwards lord the nature of government in general, and Harcourt, and sir Constantine Phipps, as the constitution and laws of Britain in his counsel, who defended him the best particular, which necessity in that parway they could, though they were hard ticular case made expedient and lawful,” put to it to maintain the hereditary right Ibid.

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202 IMPEACHMENT OF SACHEVERELL. CHAP. XVI. resistance at the revolution as part of the legislative and supreme power, but as part of the collective body of the nation.1 And sir John Holland had before observed, ” that there was a resistance at the revolution was most plain, if taking up arms in Yorkshire, Nottinghamshire, Cheshire, and almost all the counties of England; if the desertion of a prince’s own troops to an invading prince, and turning their arms against their sovereign, be resistance.” 2 It might in fact have been asked whether the dukes of Leeds and Shrewsbury, then sitting in judgment on Sacheverell (and who afterwards voted him not guilty), might not have been convicted of treason, if the prince of Orange had failed of success? 8 The advocates indeed of the prisoner made so many concessions as amounted to an abandonment of all the general question.

They relied chiefly on numerous passages in the homilies and most approved writers of the Anglican church, asserting the duty of unbounded passive obedience. But the managers eluded these in their reply with decent respect.4 The lords voted Sacheverell guilty by a majority of 67 to 59; several voting on each side rather according to their present faction than their own principles. They passed a slight sentence, interdicting him only from preaching for three years. This was deemed a sort of triumph by his adherents; but a severe punishment on one so insignificant would have been misplaced; and the sentence may be compared to the nominal damages sometimes given in a suit instituted for the trial of a great right. 1

State Trials, 407. nal points, as well as in the tenet of non2 Id. 110.

resistance, do not represent the senti8 Cunningham says that the duke of ments of the modern church, though, in Sreeds spoke strongly in favor of the rev-a general way. it subscribes to them. olution, though he voted Sacheverell not But the times were not ripe for this, or guilty. P. 298.

Lockhart observes that some other of that good prelate’s designs. he added success to necessity, as an es-Wordsworth’s Eccles. Biog. vol. vi The sential point for rendering the revolution quotations from the homilies and other lawful. approved works by Sacheverell’s counsel 4 The homilies are so much more vehe-are irresistible, and must have increased ment against resistance than Sacheverell the party spirit of the clergy. ” No conwas, that it would have been awkward to juncture of circumstances whatever,” pass a rigorous sentence on him. In fact, says bishop Sanderson,’ can make that he or any other clergyman had a right to expedient to be done at any time that is preach the homily against rebellion in-of itself, and in the kind, unlawful. For stead of a sermon.

As to their laying a man to take up arms offensive or dedown general rules without adverting to fensive against a lawful sovereign, being the exceptions, an apology which the a thing in its nature simply and de toto maanagers set up for them it was just as genere unlawful, may not be done by any good for Sacheverell; and the homilies man, at any time, in any case, upon any expressly deny all possible exceptions. color or pretence whatsoever.” Stas Tillotson had a plan of dropping these Trials, 231,ld compositions, which in some doctri

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ANi:E, GEO. I. & II. REVOLUTION IN MINISTRY. 203 The shifting combinations of party in the reign of Anne, which affected the original distinctions of whig and tory, though generally known, must be shortly in the min.

noticed. The queen, whose understanding and istryunder fitness for government were below mediocrity, had been attached to the tories, and bore an antipathy to her predecessor. Her first ministry, her first parliament, gave presage of a government to be wholly conducted by that party. But this prejudice was counteracted by the persuasions of that celebrated favorite, the wife of Marlborough, who, probably from some personal resentments, had thrown her influence into the scale of the whigs. The well-known records of their conversation and correspondence present a strange picture of good-natured feebleness on one side, and of ungrateful insolence on the other. But the interior of a court will rarely endure daylight. Though Godolphin and Marlborough, in whom the queen reposed her entire confidence, had been thought tories, they became gradually alienated from that party, and communicated their own feelings to the queen. The house of commons very reasonably declined to make an hereditary grant to the latter out of the revenues of the post-office in 1702, when he had performed no extraordinary services; though they acceded to it without hesitation after the battle of Blenheim.1 This gave some offence to Anne; and the chief tory leaders in the cabinet, Rochester, Nottingham, and Buckingham, displaying a reluctance to carry on the war with such vigor as Marlborough knew to be necessary, were soon removed from office. Their revengeful attack on the queen, in the address to invite the princess Sophia, made a return to power hopeless for several years. Anne, however, entertained a desire very natural to an English sovereign, yet in which none but a weak one will expect to succeed, of excluding chiefs of parties from her councils. Disgusted with the tories, she was loath to admit the whigs; and thus Godolphin’s administration, from 1704 to 1708, was rather sullenly supported, sometimes indeed thwarted, by that party. Cowper was made chancellor against the queen’s wishes;2 but the junto, as it was 1 Parl. Hist. vi. 57. They did not reflecting on the late king, but carried scruple, however, to say what cost noth-by 180 to 80. Id. 58; Burnet. ing but veracity and gratitude, that Marl-2 Coxe’s Marlborough, i. 483. Mr. borough had retrieved the honor of the Smith was chosen speaker by 248 to 205, nation. This was justly objected to. as a slender majority: but some of the min

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204 INFLUENCE OF FAVORITES. CHAP. XVI. called, of five eminent whig peers, Somers, Halifax, Whar. ton, Orford, and Sunderland, were kept out through the queen’s dislike, and in some measure, no question, through Godolphin’s jealousy. They forced themselves into the cabinet about 1708; and effected the dismissal of Harley and St. John, who, though not of the regular tory school in connection or principle, had already gone along with that faction in the late reign, and were now reduced by their dismissal to unite with it.1 The whig ministry of queen Anne, so often talked of, cannot in fact be said to have existed more than two years, from 1708 to 1710; her previous administration having been at first tory, and afterwards of a motley complexion, though depending for existence on the great whig interest which it in some degree proscribed. Every one knows that this ministry was precipitated from power through the favorite’s abuse of her ascendency, become at length intolerable to the most forbearing of queens and mistresses, conspiring with another intrigue of the bedchamber, and the popular clamor against Sacheverell’s impeachment.2

It seems rather an humiliating proof of the sway which the feeblest prince enjoys even in a limited monarchy, that the fortunes of Europe should have been changed by nothing more noble than the insolence of one waiting-woman and the cunning of another. It is true that this was effected by throwing the weight of the crown into the scale of a powerful faction; yet the house of Bourbon would probably not have reigned beyond the Pyrenees, but for Sarah and Abigail at queen Anne’s toilet.3 isterial party seem to have thought him neither patience to bear nor spirit to subtoo much a whig. Id.

485; Parl. Hist. due.” Memoirs relating to the Change 450. The whig pamphleteers were long in the Queen’s Ministry. But Coxe seems hostile to Marlborough. to refer the commencement of the coldness 1 Burnet rather gently slides over these to 1706. Life of Marlborough, p. 151.jealousies between Godolphin and the 1845.] whig junto; and Tindal, his mere copy-3

[“, It is most certain that, when the 1st, is not worth mentioning. But Cun-queen first began to change her servants, ningham’s history, and still more the it was not from a dislike of things but cf letters published in Coxe’s Life of Marl-persons, and those persons a very small borough, show better the state of party number.” Swift’s Inquiry into the Beintrigues; which the Parliamentary His-havior of the Queen’s last Ministry. tory also illustrates, as well as many Though this authority is not always pamphlets of the time. Somerville has trustworthy, I incline to credit what is carefully compiled as much as was known here said, confirmed by his private letters when he wrote. to Stella at this time. “

It was the issue,” 2 [If we may believe Swift, the queen he goes on to inform us, ” of Sacheverell’s had become alienated from the duchess trial which encouraged her to proceed so of Marlborough as far back as her ac-far. She then determined to dissolve cession to the throne; the ascendant of parliament, having previously only dethe latter being what ” her majesty had signed to turn out one family. The

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ANNE, GEO. I. & II. WAR OF THE SUCCESSION. 205 The object of the war, as it is commonly called, of the Grand Alliance, commenced in 1702, was, as ex-war of the pressed in an address of the house of commons, succession.

for preserving the liberties of Europe and reducing the exorbitant power of France.1 The occupation of the Spanish dominions by the duke of Anjou, on the authority of the late king’s will, was assigned as its justification, together with the acknowledgment of the pretended prince of Wales as successor to his father James. Charles, archduke of Austria, was recognized as king of Spain; and as early as 1705 the restoration of that monarchy to his house is declared in a speech from the throne to be not only safe and advantageous, but glorious to England.2 Louis XIV. had perhaps at no time much hope of retaining for his grandson the whole inheritance he claimed; and on several occasions made overtures for negotiation, but such as indicated his design of rather sacrificing the detached possessions of Italy and the Netherlands than Spain itself and the Indies.’ After the battle of Oudenarde, however, and the loss of Lille in the campaign of 1708, the exhausted state of France and discouragement of his court induced him to acquiesce in the cession of the Spanish monarchy as a basis of treaty. In the conferences of the Hague, in 1709, he struggled for a time to preserve Naples and Sicily; but ultimately admitted the terms imposed by the allies, with the exception of the famous thirtyseventh article of the preliminaries, binding him to procure whigs on this resolved to resign, which try, and a great majority of all commisshe accepted unwillingly from Somers sions, remained in the hands of the other and Cowper, both of whom, especially the party. She lost the government the vote former, she esteemed as much as her na-on lord Nottingham’s motion, and seemed ture was capable of.” Her scheme was so little displeased, that she gave her moderate and comprehensive, from which hand to Somerset (who had voted against she never departed till near her death. the court) to lead her out. But during She became very difficult to advise out her illness in the winter of 1713, the of the opinion of having been too much whigs were on the alert, which, he says, directed. ” So that few ministers had was so represented to her. that’L
she laid ever perhaps a harder game to play, be-aside all schemes of reconciling the two tween the jealousy and discontents of his opposite interests, and entered on a firm [Oxford’s] friends on one side, and the resolution of adhering to the old English management of the queen’s temper on principles.” This passage is to be conthe other.” Hiis friends were anxious for sidered with a view to what we learn from further changes, with which he was not other quarters about the’ old English unwilling to comply, had not the duchess principles;” which, whether Swift was of Somerset’s influence been employed, aware of it or no, meant with many The queen said, if she might not choose nothing less than the restoration of the her own servants, she could not see what house of Stuart. - 1845.]

advantage she had got from the change 1 Parl. Hist. vi. 4. of ministry; and so little was her heart 2 Nov. 27; Parl. IIist. 477. set upon a tory administration, that 3 Coxe’s Marlborough, i. 453, ii. 110; many employments in court and coun-Cunningham, ii. 52, 83.

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206 WAR OF THE SUCCESSION. CHAP. XV1 by force or persuasion the resignation of the Spanish crown by his grandson within two months. This proposition he declared to be both dishonorable and impracticable; and, the allies refusing to give way, the negotiation was broken off. It was renewed the next year at Gertruydenburg; but the same obstacle still proved insurmountable.l It has been the prevailing opinion in modern times that the English ministry, rather against the judgment of their allies of Holland, insisted upon a condition not indispensable to their security, and too ignominious for their fallen enemy to accept. Some may perhaps incline to think that, even had Philip of Anjou been suffered to reign in Naples, a possession rather honorable than important, the balance of power would not have been seriously affected, and the probability of durable peace been increased. This, however, it was not necessary to discuss. The main question is as to the power which the allies possessed of securing the Spanish monarchy for the archduke, if they had consented to waive the thirtyseventh article of the preliminaries. If indeed they could have been considered as a single potentate, it was doubtless possible, by means of keeping up great armies on the frontier, and by the delivery of cautionary towns, to prevent the king of France from lending assistance to his grandson. But, selfinterested and disunited as confederacies generally are, and as the grand alliance had long since become, this appeared a very dangerous course of policy, if Louis should be playing an underhand game against his engagements. And this it was not then unreasonable to suspect, even if we should believe, in despite of some plausible authorities, that he was really sincere in abandoning so favorite an interest. The obstinate adherence of Godolphin and Somers to the preliminaries may possibly have been erroneous; but it by no means deserves the reproach that has been unfairly bestowed on it; nor can the whigs be justly charged with protracting the war to enrich Marlborough, or to secure themselves in power.2 1 M6moires de Torcy, vol. ii. passim; for insisting on the cession of Spain. (iii. Coxe’s Marlborough, vol. iii.; Boling-40.) Godolphin, Somers, and the whigs broke’s Letters on History, and Lord in general, expected Louis XIV. to yield Walpole’s Answer to them; Cunning-the thirtyseventh article. Cowper, howham; Somerville, 840. ever, was always doubtful of this. Id. 2 The late biographer of Marlborough 176. asserts that he was against breaking off It is very hard to pronounce, as it apthe conferences in 1709, though clearly pears to me, on the great problem o

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ANNE, GEO. I. & II. TREATY OF UTRECHT. 207 The conferences at Gertruydenburg were broken off in July, 1710, because an absolute security for the Treaty of evacuation of Spain by Philip appeared to be peace broken wanting; and within six months a fresh negotia-off tion was secretly on foot, the basis of which was his retention of that kingdom.

For the administration presided over by Godolphin had fallen meanwhile; new councillors, a new parliament, new principles of government. The tories had from the beginning come very reluctantly into the schemes of the grand alliance; though no opposition to the war had ever been shown in parliament, it was very soon perceived that the majority of that denomination had their hearts bent on peace.’ But instead of renewing the negotiation in concert with the allies (which indeed might again by have been impracticable), the new ministers fell the torygovupon the course of a clandestine arrangement, in exclusion of all the other powers, which led to the signature of preliminaries in September, 1711, and afterwards to the public congress of Utrecht, and the celebrated treaty named Louis’s sincerity in this negotiation. No swered that he must end the war at any decisive evidence seems to have been price. 15th April, 1709. Id. 34. In brought on the contrary side. The most the next year, after the battle of Sararemarkable authority that way is a pas-gosa, which seemed to turn the scale sage in the Memoires of St. Phelipe, iii. wholly against Philip, Noailles was sent 263, who certainly asserts that the king to Madrid, in order to persuade that of France had, without the knowledge of prince to abandon the contest. Id. 107. any of his ministers, assured his grandson There were some in France who would of a continued support. But the ques-even have accepted the thirtyseventh tion returns as to St. Phelipe’s means of article, of whon Madame de Maintenon knowing so important a secret. On the seems to have been. P. 117. We may other hand, I cannot discover in the long perhaps think that an explicit offer of correspondence between Madame de Main-Naples, on the part of the allies, would tenon and the Princesse des Ursins the have changed the scene; nay, it seems as least corroboration of these suspicions, if Louis would have been content at this but much to the contrary effect. Nor time with Sardinia and Sicily. P. 108. does Torcy drop a word, though writing 1 A contemporary historian of remarkwhen all was over, by which we should able gravity observes, It was strange to infer that the court of Versailles had any see how much the desire of French wine, other hopes left in 1709 than what still and the dearness of it, alienated many lingered in their heart from the determen from the duke of Marlborough’s mined spirit of the Castilians themselves. friendship.” Cunningham, ii. 220. The It appears by the Memoires de Noailles, hard drinkers complained that they were iii. 10.

(edit. 1777), that Louis wrote to poisoned by port; these formed almost a Philip, 26th Nov. 1708, hinting that he party; Dr. Aldrich, dean of Christchurch, must reluctantly give him up, in answer surnamed the Priest of Bacchus, Dr. to one wherein the latter had declared Ratcliff, general Churchill, &c. ” And that he would not quit Spain while he all the bottle companions, many physihad a drop of blood in his veins. And cians, and great numbers of the lawon the French ambassador at Madrid, yers and inferior clergy, and, in fine, the Amelot, remonstrating against the aban-loose women too, were united together donment of Spain, with an evident inti-in the faction against the duke of Marlmation that Philip could not support borough.” himself alone, the King of France an

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208 ARGUMENTS FOR AND AGAINST CHAP. XVI. from that town. Its chief provisions are too well known to be repeated. The arguments in favor of a treaty of pacification, which should abandon the great point of contest, and leave Philip in possession of Spain and America, were neither few nor inconsiderable. 1. The kingdom had been imAfrgandts poverished by twenty years of uninterruptedly augagainst the mented taxation; the annual burdens being triple treaty of i Utrecht. in amount of those paid before the Revolution. Yet amidst these sacrifices we had the mortification of finding a debt rapidly increasing, whereof the mere interest far exceeded the ancient revenues of the crown, to be bequeathed, like an hereditary curse, to unborn ages.l Though the supplies had been raised with less difficulty than in the late reign, and the condition of trade was less unsatisfactory, the landed proprietors saw with indignation the silent transfer of their wealth to new men, and almost hated the glory that was brought by their own degradation.2 Was it not to be feared that they might hate also the Revolution, and the protestant succession that depended on it, when they tasted these fruits it had borne? Even the army had been recruited by violent means unknown to our constitution, yet such as the continual loss of men, with a population at the best stationary, had perhaps rendered necessary.8 2. The prospect of reducing Spain to the archduke’s obedience was grown unfavorable. It was at best an odious work, and not very defensible on any maxims of national justice, to impose a sovereign on a great people in despite of their own repugnance, and what they deemed their loyal 1 [The national debt, 31st Dec. 1714, cruit the army by a forced conscription amounted, according to Chalmers, to of men from each parish, but laid aside 60,644,3061. Sinclair makes it 52,145,3631. as unconstitutional. Boyer’s Reign of But about half of this was temporary Queen Anne, p. 123. It was tried again annuities. The whole expenses of the in 1707 with like success. P. 319. But war are reckoned by the former writer at it was resolved instead to bring in a bill 65,853.7991. The interest of the debt was, for raising a sufficient number of troops as computed by Chalmers, 2,811,9031.; out of such persons as have no lawful by Sinclair, 3,351,3581.- 1845.] calling or employment.

Stat. 4 Anne, 2 [“Power,” says Swift,’ which, ac-c. 10; Parl. Hist. 335.

The parish officording to the old maxim, was used to cers were thus enabled to press men for follow land, is now gone over to money; the land service; a method hardly less so that, if the war continue some years unconstitutional than the former, and longer, a landed man will be little better liable to enormous abuses. The act was than a farmer of a rack-rent to the army temporary, but renewed several times and to the public funds.”

Examiner, during the war. It was afterwards reNo. 13, Oct. 1710.- 1845.]

vived in 1757 (30 Geo. II. c. 8), but 3 A bill was attempted in 1704 to re-never, I believe, on any later occasion.

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ANNE, GEO. I. & II. THE TREATY OF UTRECHT. 209 obligation. Heaven itself might shield their righteous cause, and baffle the selfish rapacity of human politics. But what was the state of the war at the close of 1710?

The surrender of 7000 English under Stanhope at Brihuega had ruined the affairs of Charles, which in fact had at no time been truly prosperous, and confined him to the single province sincerely attached to him, Catalonia. As it was certain that Philip had spirit enough to continue the war, even if abandoned by his grandfather, and would have the support of almost the entire nation, what remained but to carry on a very doubtful contest for the subjugation of that extensive kingdom? In Flanders, no doubt, the genius of Marlborough kept still the ascendant; yet France had her Fabius in Villars; and the capture of three or four small fortresses in a whole campaign did not presage a rapid destruction of the enemy’s power. 3. It was acknowledged that the near connection of the monarchs on the thrones of France and Spain could not be desired for Europe. Yet the experience of ages had shown how little such ties of blood determined the policy of courts; a Bourbon on the throne of Spain could not but assert the honor, and even imbibe the prejudices, of his subjects; and as the two nations were in all things opposite, and must clash in their public interests, there was little reason to fear a subserviency in the cabinet of Madrid, which, even in that absolute monarchy, could not be displayed against the general sentiment. 4. The death of the emperor Joseph, and election of the archduke Charles in his room, which took place in the spring of 1711, changed in no small degree the circumstances of Europe. It was now a struggle to unite the Spanish and Austrian monarchies under one head. Even if England might have little interest to prevent this, could it be indifferent to the smaller states of Europe that a family not less ambitious and encroaching than that of Bourbon should be so enormously aggrandized? France had long been to us the only source of apprehension; but to some states, to Savoy, to Switzerland, to Venice, to the principalities of the Empire, she might justly appear a very necessary bulwark against the aggressions of Austria. The alliance could not be expected to continue faithful and unanimous after so important an alteration in the balance of power. VOL. I. 14

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210 ARGUMENTS FOR AND AGAINST CHAP. XVI. 5. The advocates of peace and adherents of the new ministry stimulated the national passions of England by vehement reproaches of the allies. They had thrown, it was contended, in despite of all treaties, an unreasonable proportion of expense upon a country not directly concerned in their quarrel, and rendered a negligent or criminal administration their dupes or accomplices. We were exhausting our blood and treasure to gain kingdoms for the house of Austria which insulted, and the best towns of Flanders for the States-General who cheated us. The barrier treaty of lord Townshend was so extravagant, that one might wonder at the presumption of Holland in suggesting its articles, much more at the folly of our government in acceding to them. It laid the foundation of endless dissatisfaction on the side of Austria, thus reduced to act as the vassal of a little republic in her own territories, and to keep up fortresses at her own expense which others were to occupy. It might be anticipated that, at some time, a sovereign of that house would be found more sensible to ignominy than to danger, who would remove this badge of humiliation by dismantling the fortifications which were thus to be defended. Whatever exaggeration might be in these clamors, they were sure to pass for undeniable truths with a people jealous of foreigners, and prone to believe itself imposed upon, from a consciousness of general ignorance and credulity. These arguments were met by answers not less confident, though less successful at the moment, than they have been deemed convincing by the majority of politicians in later ages. 1. It was denied that the resources of the kingdom were so much enfeebled; the supplies were still raised without difficulty; commerce had not declined; public credit stood high under the Godolphin ministry; and it was especially remarkable that the change of administration, notwithstanding the prospect of peace, was attended by a great fall in the price of stocks. France on the other hand, was notoriously reduced to the utmost distress; and, though it were absurd to allege the misfortunes of our enemy by way of consolation for our own, yet the more exhausted of the two combatants was naturally that which ought to yield; and it was not for the honor of our free government that we should be outdone in magnanimous endurance of privations for the sake of the

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ANNE, GEO. I. & II. THE TREATY OF UTRECHT. 211 great interests of ourselves and our posterity by the despotism we so boastfully scorned.’

The king of France had now for half a century been pursuing a system of encroachment on the neighboring states, which the weakness of the two branches of the Austrian house, and the perfidiousness of the Stuarts, not less than the valor of his troops and skill of his generals, had’long rendered successful. The tide had turned for the first time in the present war; victories more splendid than were recorded in modern warfare had illustrated the English name. Were we spontaneously to relinquish these great advantages, and, two years after Louis had himself consented to withdraw his forces from Spain, our own arms having been in the mean time still successful on the most important scene of the contest, to throw up the game in despair, and leave him far more the gainer at the termination of this calamitous war than he had been after those triumphant campaigns which his vaunting medals commemorate? Spain of herself could not resist the confederates, even if united in support of Philip; which was denied as to the provinces composing the kingdom of Arragon, and certainly as to Catalonia; it was in Flanders that Castile was to be conquered; it was France that we were to overcome; and now that her iron barrier had been broken through, when Marlborough was preparing to pour his troops upon the defenceless plains of Picardy, could we doubt that Louis must in good earnest abandon the cause of his grandson, as he had already pledged himself in the conferences of Gertruydenburg? 2. It was easy to slight the influence which the ties of blood exert over kings. Doubtless they are often torn asunder by ambition or wounded pride. But it does not follow that they have no efficacy; and the practice of courts in cementing alliances by intermarriage seems to show that they are not reckoned indifferent. It might however be admitted that a king of Spain, such as she had been a hundred years before, would probably be led by the tendency of his ambition into a course of policy hostile to France. But that monarchy had long been declining: great rather in name and 1 Every contemporary writer bears are full of the public misery, which she testimony to the exhaustion of France, did not soften, out of some vain hope rendered still more deplorable by the that her inflexible correspondent might unfavorable season of 1709, which pro-relent at length, and prevail on the king duced a famine. Madame de Mainte-and queen of Spain to abandon Oheir non’s letters to the Princesse des Ursins throne.

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212 TREATY OF UTRECHT. CHAr. XVI extent of dominion than intrinsic resources, she might perhaps rally for a short period under an enterprising minister; but with such inveterate abuses of government, and so little progressive energy among the people, she must gradually sink lower in the scale of Europe, till it might become the chief pride of her sovereigns that they were the younger branches of the house of Bourbon. To cherish this connection would be the policy of the court of Versailles; there would result from it a dependent relation, an habitual subserviency of the weaker power, a family compact of perpetual union, always opposed to Great Britain. In distant ages, and after fresh combinations of the European commonwealth should have seemed almost to efface the recollection of Louis XIV. and the war of the succession, the Bourbons on the French throne might still claim a sort of primogenitary right to protect the dignity of the junior branch by interference with the affairs of Spain; and a late posterity of those who witnessed the peace of Utrecht might be entangled by its improvident concessions. 3. That the accession of Charles to the empire rendered his possession of the Spanish monarchy in some degree less desirable, need not be disputed; though it would not be easy to prove that it could endanger England, or even the smaller states, since it was agreed on all hands that he was to be master of Milan and Naples.

But against this, perhaps imaginary mischief, the opponents of the treaty set the risk of seeing the crowns of France and Spain united on the head of Philip. In the year 1711 and 1712 the dauphin, the duke of Burgundy, and the duke of Berry were swept away. An infant stood alone between the king of Spain and the French succession. The king was induced, with some unwillingness, to sign a renunciation of this contingent inheritance. But it was notoriously the doctrine of the French court that such renunciations were invalid; and the sufferings of Europe were chiefly due to this tenet of indefeasible royalty. It was very possible that Spain would never consent to this union, and that a fresh league of the great powers might be formed to prevent it; but, if we had the means of permanently separating the two kingdoms in our hands, it was strange policy to leave open this door for a renewal of the quarrel. But whatever judgment we may be disposed to form as to

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ANNE, GEO. I. & II. INTRIGUES OF JACOBITES. 213 the political necessity of leaving Spain and America in the possession of Philip, it is impossible to justify the The negoticourse of that negotiation which ended in the ation mispeace of Utrecht. It was at best a dangerous and managed. inauspicious concession, demanding every compensation that could be devised, and which the circumstances of the war entitled us to require. France was still our formidable enemy; the ambition of Louis was still to be dreaded, his intrigues to be suspected. That an English minister should have thrown himself into the arms of this enemy at the first overture of negotiation; that he should have renounced advantages upon which he might have insisted; that he should have restored Lille, and almost attempted to procure the sacrifice of Tournay; that throughout the whole correspondence and in all personal interviews with Torcy he should have shown the triumphant queen of Great Britain more eager for peace than her vanquished adversary; that the two courts should have been virtually conspiring against those allies, without whom we had bound ourselves to enter on no treaty; that we should have withdrawn our troops in the midst of a campaign, and even seized upon the towns of our confederates while we left them exposed to be overcome by a superior force; that we should have first deceived those confederates by the most direct falsehood in denying our clandestine treaty, and then dictated to them its acceptance, are facts so disgraceful to Bolingbroke, and in somewhat a less degree to Oxford, that they can hardly be palliated by establishing the expediency of the treaty itself.l For several years after the treaty of Ryswick the intrigues of ambitious and discontented statesmen, and of a Intrigues of misled faction, in favor of the exiled family, grew the jacomuch colder; the old age of James and the in-bites. fancy of his son being alike incompatible with their success. The jacobites yielded a sort of provisional allegiance to the daughter of their king, deeming her, as it were, a regent in the heir’s minority, and willing to defer the consideration of his claim till he should be competent to make it, or to ac1 [Bolingbroke owns, in his Letters on on the contrary, from his correspondence, the Study of History, Letter viii., that that the strength of this opposition at the peace of Utrecht was not what it home was the only argument he used should have been, and that France should with Torcy to save Tournay and other had given up more; but singularly lays places, as far as he cared to save them at the blame of her not having done so on all. - 1845.] those who opposed the peace. It appears,

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214 MINISTERS ENGAGED IN THEM. CHAP. XVI. quiesce in her continuance upon the throne, if she could be induced to secure his reversion.1 Meanwhile, under the name of tories and high-churchmen, they carried on a more dangerous war by sapping the bulwarks of the revolutionsettlement. The disaffected clergy poured forth sermons and libels, to impugn the principles of the whigs or traduce their characters. Twice a year especially, on the 30th of January and 29th of May, they took care that every stroke upon rebellion and usurpation should tell against the expulsion of the Stuarts and the Hanover succession. They inveighed against the dissenters and the toleration. They set up pretences of loyalty towards the queen, descanting sometimes on her hereditary right, in order to throw a slur on the settlement. They drew a transparent veil over their designs, which might screen them from prosecution, but could not impose, nor was meant to impose, on the reader. Among these the most distinguished was Leslie, author of a periodical sheet called the Rehearsal, printed weekly from 1704 to 1708; and as he, though a nonjuror and unquestionable jacobite, held only the same language as Sacheverell, and others who affected obedience to the government, we cannot much be deceived in assuming that their views were entirely the same.2 The court of St. Germains, in the first years of the queen, preserved a secret connection with Godolphin mie fsthes and Marlborough, though justly distrustful of their engage in sincerity; nor is it by any means clear that they made any strong professions.8 Their evident de1 It is evident from Macpherson’s Pa-did not intend; that the tories had alpers, that all hopes of a present restora-ways distressed him, and his administration in the reign of Anne were given up tion had passed in a struggle with the in England. They soon revived, how-whig junto. Id. 170. Somerville says ever. as to Scotland, and grew stronger he was assured that Carte was reckoned about the time of the union. credulous and ill-informed by the jaco2 The Rehearsal is not written in such bites. P. 273. It seems, indeed, by somle a manner as to gain over many prose-passages in Macpherson’s Papers, that lytes. The scheme of fighting against the Stuart agents either kept up an inliberty with her own arms had not yet tercourse with Godolphin, or pretended come into vogue; or rather Leslie was to do so. Vol. ii. 2, et post. But it is too mere a bigot to practise it. He is evident that they had no confidence in wholly for arbitrary power; but the him. common stuff of his journal is high-It must be observed, however, that church notions of all descriptions. This lord Dartmouth, in his notes on Burnet, could not win many in the reign of repeatedly intimates that Godolphin’s Anne. secret object in his ministry was the res3 Macpherson, i. 608. If Carte’s anec-toration of the house of Stuart, and that dotes are true, which is very doubtful, with this view he suffered the act of seGodolphin, after he was turned out, de-curity in Scotland to pass, which raised dared his concern at not having restored such a clamor that he was forced to close the king; that he thought Harley would with the whigs in order to save himself. do it, but by French assistance, which he It is said also by a very good authority,

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ANNE, GEO. I. & II. ALARM FOR THE SUCCESSION. 215 termination to reduce the power of France, their approxima. tion towards the whigs, the averseness of the duchess to jacbite principles, taught at length that unfortunate court how little it had to expect from such ancient friends.

The Scotch jacobites, on the other hand, were eager for the young king’s immediate restoration; and their assurances finally produced his unsuccessful expedition to the coast in 1708.1 This alarmed the queen, who at least had no thoughts of giving up any part of her dominions, and probably exasperated the two ministers.2 Though Godolphin’s partiality to the Stuart cause was always suspected, the proofs of his intercourse with their emissaries are not so strong as against Marlborough; who, so late as 1711, declared himself more positively than he seems hitherto to have done in favor of their restoration.3 But the extreme selfishness and treachery of his character make it difficult to believe that he had any further view than to secure himself in the event of a revolution which he judged probable. His interest, which was always his deity, did not lie in that direction; and his great sagacity must have perceived it. A more promising overture had by this time been made to the young claimant from an opposite quarter. Mr. alarm Harley, about the end of 1710, sent the abbe forthe Gaultier to marshal Berwick (natural son of James Hanover II. by Marlborough’s sister), with authority to treat about the restoration; Anne of course retaining the crown for her life, and securities being given for the national religion and liberties. The conclusion of peace was a necessary condition. The jacobites in the English parliament were directed in consequence to fall in with the court, which rendered it decidedly superior. Harley promised to send over in the next year a plan for carrying that design into effect. But neither at that time, nor during the remainder lord Hardwicke (note on Burnet, Oxf. mentaries (in Lockhart Papers, i. 308). edit. v. 352). that there was something Yet it seems almost impossible to suspect not easy to be accounted for in the con-Godolphin of such treachery, not only duct of the ministry, preceding the at-towards the protestant succession, but his tempt on Scotland in 1708; giving us mistress herself. to understand in the subsequent part of 1

Macpherson, ii. 74, et post; Hooke’s the note that Godolphin was suspected Negotiations; Lockhart’s Commentaries; of connivance with it. And this is con-Ker of Kersland’s Memoirs, i. 45; Burfirmed by Ker of Kersland, who direct-net; Cunningham; Somerville. ly charges the treasurer with extreme 2 Burnet, 502. remissness, if not something worse. Me-3 Macpherson, ii.

158, 228, 288; andi moirs, i. 54. See also Lockhart’s Cor-see Somerville, 272.

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216 JUST ALARM FOR THE CHAP. XVL of the queen’s life, did this dissembling minister take any further measures, though still in strict connection with that party at home, and with the court of St. Germains.1 It was necessary, he said, to proceed gently, to make the army their own, to avoid suspicions which would be fatal. It was manifest that the course of his administration was wholly inconsistent with his professions; the friends of the house of Stu art felt that he betrayed, though he did not delude them; but it was the misfortune of this minister, or rather the just and natural reward of crooked counsels, that those he meant to serve could neither believe in his friendship, nor forgive his appearances of enmity.

It is doubtless not easy to pronounce on the real intentions of men so destitute of sincerity as Harley and Marlborough; but in believing the former favorable to the protestant succession, which he had so eminently contributed to establish, we accede to the judgment of those contemporaries who were best able to form one, and especially of the very jacobites with whom he tampered. And this is so powerfully confirmed by most of his public measures, his averseness to the high tories, and their consequent hatred of him, his irreconcilable disagreement with those of his colleagues who looked most to St. Germains, his frequent attempts to renew a connection with the whigs, his contempt of the jacobite creed of government, and the little prospect he could have had of retaining power on such a revolution, that, so far at least as may be presumed from what has hitherto become public, there seems no reason for counting the earl of Oxford among those from whom the house of Hanover had any enmity to apprehend.2 1 Memoirs of Berwick, 1778 (English ject was to have excluded the more acritranslation). And compare Lockhart’s monious whigs, such as Wharton and Commentaries, p. 368; Macpherson, sub Sunderland, as well as the duke of Marlann. 1712 and 1713, passim. borough and his wife, and coalesced with 2 The pamphlets on Harley’s side, and Cowper and Somers, both of whom were probably written under his inspection, also in favor with the queen. But the for at least the first year after his eleva-steadiness of the whig party, and their tion to power, such as one entitled resentment of his duplicity, forced him ” Faults on both Sides,”

ascribed to into the opposite quarters, though he Richard Harley, his relation (Somers’ never lost sight of his schemes for reconTracts, xii.

678), ” Spectator’s Address ciliation. to the Whigs on Occasion of the Stabbing The dissembling nature of this unforMr. Harley.” or the ” Secret History of tunate statesman rendered his designs the October Club,” 1711

(I believe by De suspected. The whigs, at least in 1713, Foe), seem to have for their object to in their correspondence with the court reconcile as many of the whigs as pos-of Hanover, speak of him as entirely in sible to his administration, and to dis-the jacobite interest. Macpherson, ii.

play his aversion to the violent tories. 472, 509. Cunningham, who is not on There can be no doubt that his first pro-the whole unfavorable to Harley, says

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ANE, GEO. 1. & II. HANOVER SUCCESSION. 217 The pretender, meanwhile, had friends in the tory government more sincere probably and zealous than Oxford. In the year 1712 lord Bolingbroke, the duke of Buckingham, president of the council, and the duke of Ormond, were engaged in this connection.’ The last of these being in the that ” men of all parties agreed in con-writer, Somerville, quotes the book freely eluding that his designs were in the pre-as genuine (Hist. of Anne, p. 581, &c.), tender’s favor. And it is certain that he I found in reading it what seemed to me affected to have it thought so.” P. 303. the strongest grounds of suspicion. It Lockhart also bears witness to the reli-is printed in England, without a word of ance placed on him by the jacobites, and preface to explain how such important argues with some plausibility (p.

377) secrets came to be divulged, or by what that the duke of Hamilton’s appoint-means the book was brought before the ment as ambassador to France, in 1712, world; the correct information as to must have been designed to further their English customs and persons frequently object; though he believed that the death betrays a native pen; the truth it conof that nobleman, in a duel with lord tains, as to jacobite intrigues, might Mohun, just as he was setting out for have transpired from other sources, and Paris, put a stop to the scheme, and in the main was pretty well suspected, “questions if it was ever heartily rcas-as the Report of the Secret Committee sumed by lord Oxford.”- L” This I know, on the Impeachments in 1715 shows; that his lordship, regretting to a friend so that, upon the whole, I cannot but of mine the duke’s death, next day after reckon it a forgery in order to injure it happened, told him that it disordered’the tory leaders. [In a note on Swift’s all their schemes, seeing Great Britain Works, vol. xxv. p. 37 (1779), it is said, did not afford a person capable to dis-on the authority of Savage, that ” no charge the trust which was committed to such book was ever printed in the French his grace, which sure was somewhat very tongue, from which it is impudently extraordinary; and what other than the said to be translated, as Mesuager’s Neking’s restoration could there be of so gotiations.” And, on reference to Sayvery great importance, or require such age’s poem entitled False IIistorians, I dexterity in managing, is not easy to find this couplet:imagine. And indeed it is more than ^ S t^ S’ (, Some usurp names -an English probable that, before his lordship could e usurp names pitch upon one he might depend on in r tes ieur such weighty matters, the discord and mesn division which happened betwixt him esnae and the other ministers of state diverted I think that the book has been ascribed or suspended his design of serving the to De Foe. -1845.] king.” Lockhart’s Commentaries, p. But however this may be, we find 410. But there is more reason to doubt Bolingbroke in correspondence with the whether this design to serve the king Stuart agents in the latter part of 1712. ever existed.

Macpherson, 366. And his own corre1 If we may trust to a book printed in spondence vwth lord Strafford shows his 1717, with the title, “Minutes of Mon-dread and dislike of Hanover. (Bol. Corr. sieur MesnaLgers Negotiations with the ii. 487, et alibi.) The duke of BuckingCourt of England towards the Close of ham wrote to St. Germains in July that the last Reign, written by himself,” that year, with strong expressions of his atagent of the French cabinet entered into tachment to the cause, and pressing the an arrangement with Bolingbroke in necessity of the prince’s conversion to March, 1712, about the pretender. It the protestant religion. Macpherson, was agreed that Louis should ostensibly 327. Ormoud is mentioned in the duke abandon him, but should not be obliged, of Berwick’s letters as in correspondence in case of the queen’s death, not to use with him; and Lockhart says there was endeavors for his restoration. Lady no reason to make the least question of Masham was wholly for this; but owned his affection to the king, whose friends “the rage and irreconcilable aversion were consequently well pleased at his apaf the greatest part of the common peo-pointment to succeed Marlborough in pie to her (the queen’s) brother was the command of the army, and thought grown to a height.” But I must confess it portended some good designs in favor that, although Macpherson has extracted of him. Id. 376.

the above passage, and a more judicious Of Ormond’s sincerity in this cause

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218 JUST ALARM FOR THE CHAP. XVI. command of the army, little glory as that brought him, might become an important auxiliary. Harcourt, the chancellor, though the proofs are not, I believe, so direct, has always been reckoned in the same interest. Several of the leading Scots peers, with little disguise, avowed their adherence to it; especially the duke of Hamilton, who, luckily perhaps for the kingdom, lost his life in a duel at the moment when he was setting out on an embassy to France. The rage expressed by that faction at his death betrays the hopes they had entertained from him. A strong phalanx of tory members, called the October Club, though by no means entirely jacobite, were chiefly influenced by those who were such. In the new parliament of 1713.the Queen’s precarious health excited the Stuart partisans to press forward with more zeal. The mask was more than half drawn aside; and, vainly urging the ministry to fulfil their promises while yet in time, they cursed the insidious cunning of Harley and the selfish cowardice of the queen. Upon her they had for some years relied. Lady Masham, the bosom favorite, was entirely theirs; and every word, every look of the sovereign, had been anxiously observed, in the hope of some indication that she would take the road which affection and conscience, as they fondly argued, must dictate. But, whatever may have been the sentiments of Anne, her secret was never divulged, nor is there can indeed be little doubt; but It must be admitted that part of the there is almost as much reason to sus-cabinet were steady to the protestant pect that of Bolingbroke as of Oxford: succession. Lord Dartmouth, lord Powexcept that, having more rashness and lett, lord Trevor, and the bishop of Lonless principle, he was better fitted for so don were certainly so; nor can there be dangerous a counter-revolution. But in any reasonable doubt, as I conceive, of reality he had a perfect contempt for the the duke of Shrewsbury. On the other Stuart and tory notions of government, side, besides Ormond, IIarcourt, and Boland would doubtless have served the ingbroke, were the duke of Buckingham, house of Hanover with more pleasure if sir William Wyndham, and probably Mr. his prospects in that quarter had been Bromley. [The impression which Bolingmore favorable. It appears that in the broke’s letter to sir William Wyndham session of 1714, when he had become lord leaves on the mind is, that, having no of the ascendant, he disappointed the steady principle of action, he had been zealous royalists by his delays as much all along fluctuating between Hanover as his more cautious rival had done be-and St. Germains, according to the prosfore. Lockhart, 470. This writer re-pect he saw of standing well with one or peatedly asserts that a majority of the the other, and in a great degree accordhouse of commons, both in the parlia-ing to the politics of Oxford, being determent of 1710 and that of 1713, wanted mined to take the opposite line. But he only the least encouragement from the had never been able to penetrate a more court to have brought about the repeal dissembling spirit than his own. This of the act of settlement. But I think letter, as is well known, though written this very doubtful; and I am quite con-in 1717, was not published till after Bol. vinced that the nation would not have iugbroke’s death. -1845.] acquiesced in it. Lockhart is sanguine, and ignorant of England.

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ANNE, GEO. I. & II. HANOVER SUCCESSION. 219 there, as I apprehend, however positively the contrary is sometimes asserted, any decisive evidence whence we may infer that she even intended her brother’s restoration.1 The weakest of mankind have generally an instinct of selfpreservation which leads them right, and perhaps more than stronger minds possess; and Anne could scarcely help perceiving that her own deposition from the throne would be the natural consequence of once admitting the reversionary right of one whose claim was equally good to the possession. The asserters of hereditary descent could acquiesce in her usurpation no longer than they found it necessary for their object; if her life should be protracted to an ordinary duration, it was almost certain that Scotland first, and afterwards England, would be wrested from her impotent grasp. Yet, though I believe the queen to have been sensible of this, it is impossible to pronounce with certainty that, either through 1 It is said that the duke of Leeds, was somewhat surprised, but, recovering who was now in the Stuart interest, had myself, I assured her I should never be sounded her in 1711, but with no suc-accessory to the imposing any hardship cess in discovering her intention. Mac-or affront upon her; and as for the prince pherson, 212. The duke of Buckingham of Hanover, her majesty might judge pretended, in the above-mentioned letter from the address I had read that I should to St. Germains, June, 1712, that he had not be acceptable to my constituents if I often pressed the queen on the subject of gave my consent for bringing over any her brother’s restoration, but could get of that family, either now or at any time no other answer than, ” You see he does hereafter. At that she smiled and I withnot make the least step to oblige me; ” drew; and then she said to the duke or ” He may thank himself for it: he (Hamilton) she believed I was an honest knows I always loved him better than man and a fair dealer; and the duke rethe other.” Id. 328.

This alludes to plied, he could assure her I liked her the pretender’s pertinacity, as the writer majesty and all her father’s bairns.” P.

thought it, in adhering to his religion; 317. It appears in subsequent parts of and it may be very questionable whether this book that Lockhart and his friends he had ever such conversation with the were confident of the queen’s inclinations queen at all. But, if he had, it does not in the last year of her life, though not of lead to the supposition that under all cir-her resolution. cumstances she meditated his restoration. The truth seems to be that Anne was If the book under the name of Mesnager very dissembling, as Swift repeatedly is genuine, which I much doubt, Mrs.

says in his private letters, and as feeble Masham had never been able to elicit and timid persons in high station generanything decisive of her majesty’s incli-ally are; that she hated the house of nations; nor do any of the Stuart corre-Hanover, and in some measure feared spondents in Macpherson pretend to them; but that she had no regard for the know her intentions with certainty. The pretender (for it is really absurd to talk following passage in Lockhart seems rath-like Somerville of natural affection under er more to the purpose:- On his coming all the circumstances), and feared him a to parliament in 1710, with a ” high great deal more than the other: that she monarchical address,’ which he had pro-had, however, some scruples about his cured from the county of Edinburgh, right, which were counterbalanced byher “the queen told me, though I had al-attachment to the church of England; most always opposed her measures, she consequently, that she was wavering did not doubt of my affection to her per-among opposite impulses, but with a preson, and hoped I would not concur in the dominating timidity which would have design against Mrs. Masham, or for bring-probably kept her from any change. Ing over the prince of Hanover. At first I

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220 JUST ALARM FOR THE CsAl. XVI. pique against the house of Hanover, or inability to resist her own counsellors, she might not have come into the scheme of altering the succession. But, if neither the queen nor her lord treasurer were inclined to take that vigorous cause which one party demanded, they at least did enough to raise just alarm in the other; and it seems strange to deny that the protestant succession was in danger. As lord Oxford’s ascendency diminished, the signs of impending revolution became less equivocal. Adherents of the house of Stuart were placed in civil and military trust; an Irish agent of the pretender was received in the character of envoy from the court of Spain; the most audacious manifestations of disaffection were overlooked.’ Several even in parliament spoke with contempt and aversion of the house of Hanover.2 It was surely not unreason1 The duchess of Gordon, in June, in ” Some Free Thoughts upon the Pres1711, sent a silver medal to the faculty ent State of Affairs,” 1714, speaks with of advocates at Edinburgh, with a head much contempt of the house of Hanover on one side, and the inscription, Cujus and its sovereign; and suggests, in deriest; on the other, the British Isles, with sion, that the infant son of the electoral the word Reddite.

The dean of faculty, prince might be invited to take up his DundasofArniston, presented this medal; residence in England. He pretends in and there seems reason to believe that a this tract, as in all his writings, to deny majority of the advocates voted for its entirely that there was the least tendency reception. Somerville, p. 452. Boling-towards jacobitism, either in any one of broke, in writing on the subject to a the ministry, or even any eminent indifriend, it must be owned, speaks of the vidual out of it; but with so impudent a proceeding with due disapprobation. Bol-disregard to truth, that I am not peringbroke Correspondence, i. 343. No fectly convinced of his own innocence as measures, however, were taken to mark to that intrigue. Thus, in his Inquiry the court’s displeasure. into the Behavior of the Queen’s last “Nothing is more certain,” says Bol-Ministry, he says, ” I remember, during ingbroke, in his letter to sir William the late treaty of peace, discoursing at Wyndham, perhaps the finest of his writ-several times with some very eminent ings,’ than this truth, that there was at persons of the opposite side with whom I that time no formed design in the party, had long acquaintance. I asked them whatever views some particular men seriously whether they or any of their might have, against his majesty’s acces-friends did in earnest believe, or suspect, sion to the throne.” P.

22. This is in the queen or the ministry to have any effect to confess a great deal; and in other favorable regards towards the pretender? parts of the same letter he makes ad-They all confessed for themselves that missions of the same kind; though he they believed nothing of the matter,”

&c. says that he and other tories had deter-He then tells us that he had the curiosity mined, before the queen’s death, to have to ask almost every person in great emno connection with the pretender, on ac-ployment whether they knew or had count of his religious bigotry. P. 111. heard of any one particular man, except 2 Lockhart gives us a speech of sir professed nonjurors, that discovered the William Whitelock in 1714, bitterly in-least inclination towards the pretender; reighing against the elector of Hanover, and the whole number they could muster who, he hoped, would never come to the up did not amount to above five or six; crown.

Some of the whigs cried out on among whom one was a certain old lord, this that he should be brought to the lately dead, and one a private gentleman, bar; when Whitelock said he would not of little consequence and of a broken forrecede an inch; he hoped the queen would tune, &c. (Vol. xv. p.

94, edit. 12mo. outlive that prince, and in comparison to 1765.) This acute observer of mankind her he did not value all the princes of well knew that lying is frequently sucGermany one farthing. P. 469. Swift, cessful in the ratio of its effrontery and

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ANNE, GEO. I. & II. HANOVER SUCCESSION. 221 able in the whig party to meet these assaults of the enemy with something beyond the ordinary weapons of an opposition. They affected no apprehensions that it was absurd to entertain. Those of the opposite faction who wished well to the protestant interest, and were called Hanoverian tories, came over to their side, and joined them on motions that the succession was in danger.1 No one hardly, who either hoped or dreaded the consequences, had any doubts upon this score; and it is only a few moderns who have assumed the privilege of setting aside the persuasion of contemporaries upon a subject which contemporaries were best able to understand.2 Are we then to censure the whigs for urging on the elector of Hanover, who, by a strange apathy or indifference, seemed negligent of the great prize reserved for him; or is the bold step of demanding a writ of summons fbr the electoral prince as duke of Cambridge to pass for a factious insult on the queen, because, in her imbecility, she was leaving the crown to be snatched at by the first comer, even if she were not, as they suspected, in some conspiracy to bestow it on a proscribed heir? 8 I am much inclined to believe that the great extravagance. There are, however, some 3 The queen was very ill about the passages in this tract, as in others written close of 1713; in fact it became evident, by Swift, in relation to that time, which as it had long been apprehended, that she serve to illustrate the obscure machina-could not live much longer. The Hanotions of those famous last years of the verians, both whigs and tories, urged that queen. the electoral prince should be sent for; 1 On a motion in the house of lords it was thought that whichever of the comthat the protestant succession was in petitors should have the start upon her danger, April 5, 1714, the ministry had death would succeed in securing the only a majority of 76 to 69, several bish-crown. Macpherson, 385, 546, 557, et ops and other tories voting against them. alibi. Can there be a more complete jusParl.

Hist. vi. 1334. Even in the com-tification of this measure, which Somermons the division was but 256 to 208. ville and the tory writers treat as disre. Id. 1347. spectful to the queen? The Hanoverian 2

Somerville has a separate dissertation envoy, Schutz, demanded the writ for the on the danger of the protestant suc-electoral prince without his master’s orcession, intended to prove that it was in ders; but it was done with the advice of all no danger at all, except through the vio-the whig leaders (id. 592), and with the lence of the whigs in exasperating the sanction of the electress Sophia, who died queen. It is true that Lockhart’s Comn-immediately after. “All who are for mentaries were not published at this Hanover believe the coming of the electime; but he had Macpherson before toral prince to be advantageous; all those him, and the Memoirs of Berwick, and against it are frightened at it.” Id. 596. even gave credit to the authenticity of It was doubtless a critical moment; and Mesnager, which I do not. But this sen-the court of Hanover might be excused sible, and on the whole impartial writer, for pausing in the choice of dangers, as had contracted an excessive prejudice the step must make the queen decidedly against the whigs of that period as a their enemy. She was greatly offended, party, though he seems to adopt their and forbade the Hanoverian minister to principles. His dissertation is a labored appear at court. Indeed, she wrote to attempt to explain away the most evident the elector, on May 19, expressing her facts, and to deny what no one of either disapprobation of the prince’s coming party at that time would probably have over to England, and “her determination n private denied. to oppose a project so contrary to her

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222 ACCESSION OF GEORGE I. CHAr. XVL majority of the nation were in favor of the protestant succession; but, if the princes of the house of Brunswick had seemed to retire from the contest, it might have been impracticable to resist a predominant faction in the council and in parliament, especially if the son of James, listening to the remonstrances of his English adherents, could have been induced to renounce a faith which, in the eyes cf too many, was the sole pretext for his exclusion,1
and was at least almost the only one which could have been publicly maintained with much success consistently with the general prin. ciples of our constitution.2 The queen’s death, which came at last perhaps rather more Accessionof quickly than was anticipated, broke forever the George I.

fair prospects of her family. George I., unknown and absent, was proclaimed without a single murmur, as if the crown had passed in the most regular descent. But this Whigs come was a momentary calm. The jacobite party, reinto power. covering from the first consternation, availed itself of its usual arms, and of those with which the new king supplied it. Many of the tories who would have acquiesced in the act of settlement seem to have looked on a leading share in the administration as belonging of right to what was called the church-party, and complained of the formation of a minroyal authority, however fatal the conse-myself among others. In the letter to quences may be.” Id. 621. Oxford and me the article of religion was so awkwardBolingbroke intimate the same. Id. 593; ly handled, that he made the principal and see Bolingbroke Correspondence, iv. motive of the confidence we ought to 612, a very strong passage. The measure have in him to consist in his firm resowas given up, whether from unwilling-lution to adhere to popery. The effect ness on the part of George to make the which this epistle had on me was the queen irreconcilable, or, as is at least same which it had on those tories to whom equally probable, out of jealousy of his I communicated it at that time - it made son. The former certainly disappointed, us resolve to have nothing to do with his adherents by more apparent apathy him.” It seems to have been a sine qua than their ardor required; which will non with the tory leaders that the prenot be surprising when we reflect that, tender should become a protestant. But even upon the throne, he seemed to care others thought this an unreasonable devery little about it. Macpherson, sub mand. IIe would not even directly enann. 1714, passim. gage to secure the churches of England 1 He was strongly pressed by his Eng-and Ireland, if we may believe Bolinglish adherents to declare himself a prot-broke. Id.-1845.]

estant. IIe wrote a very good answer. 2 [The whigs relied upon the army, in Macpherson, 436. Madame de Mainte-case of a struggle. Somerville, 565.

non says some catholics urged him to Swift. in his Free Thoughts on the presthe same course, “par une politique ent State of Affairs, written in the spring poussee un peu trop loin.” Lettres a la of 1714, speaks with indignation of the Princesse des Ursins, ii. 428. [ See also disaffection of the guards towards the Bolingbroke’s Letter to sir W. Wynd-queen; taking care, at the same time, to ham: ” I cannot forget, nor you either, deny the least inclination on the part of what passed when, a little before the the ministry towards a change of succesdeath of the queen, letters were conveyed sion. -1845.] from the chevalier to several persons, to

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ANNE, GEO. I. & II. WHIGS COME INTO POWER. 223 istry on the whig principle. In later times also it has been not uncommon to censure George I. for governing, as it is called, by a faction. Nothing can be more unreasonable than this reproach. Was he to select those as his advisers who had been, as we know and as he believed, in a conspiracy with his competitor? Was lord Oxford, even if the king thought him faithful, capable of uniting with any public men, hated as he was on each side? Were not the tories as truly a faction as their adversaries, and as intolerant during their own power? 1 Was there not, above all, a danger that, if some of one denomination were drawn by pique and disappointment iilto the ranks of the jacobites, the whigs, on the other hand, so ungratefully and perfidiously recompensed for their arduous services to the house of Hanover, might think all royalty irreconcilable with the principles of freedom, and raise up a republican party, of which the scattered elements were sufficiently discernible in the nation? 2 The exclusion indeed of the whigs would have been so monstrous, both in honor and policy, that the censure has generally fallen on their alleged monopoly of public offices.

But the mischiefs of a disunited, hybrid ministry had been sufficiently manifest in the two last reigns; nor could George, a stranger to his people and their constitution, have undertaken without ruin that most difficult task of balancing parties and persons, to which the great mind of William had proved unequal. Nor is it true that the tories as such were proscribed; those who chose to serve the court met with court favor: and in the very outset the few men of sufficient eminence who had testified their attachment to the succession received equitable 1 The rage of the tory party against tion.” P. 11. It is rather amusing to the queen and lord Oxford for retaining observe that those who called themselves whigs in office is notorious from Swift’s the tory or church party seem to have private letters and many other authori-fancied they had a natural right to power ties. And Bolingbroke, in his letter to’ and profit, so that an injury was done sir William Wyndham, very fairly owns them when these rewards went another their intention ” to fill the employments way: and I am not sure that something of the kingdom, down to the meanest, of the same prejudice has not been perwith tories.” -” We imagined,” he pro-ceptible in times a good deal later. ceeds, ” that such measures, joined to the 2 Though no republican party, as I advantages of our numbers and our prop-have elsewhere observed, could with any erty, would secure us against all attempts propriety be said to exist, it is easy to during her reign; and that we should perceive that a certain degree of provocasoon become too considerable not to tion from the crown might have brought make our terms in all events which one together in no slight force. These might happen afterwards; concerning two propositions are perfectly compatwhich, to speak truly, I believe few or ible. none of us had any very settled resolu

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224 GREAT DISAFFECTION. CHAP. XVI. rewards; but, most happily for himself and the kingdom, most reasonably according to the principles on which alone his throne could rest, the first prince of the house of Brunswick gave a decisive preponderance in his favor to Walpole and Townshend above Harcourt and Bolingbroke. The strong symptoms of disaffection which broke out in a few months after the king’s accession, and which Great disaf-o fection in the can be ascribed to no grievance, unless the formakingdom.

tion of a whig ministry was to be termed one, prove the taint of the late times to have been deep-seated and extensive.1 The clergy, in many instances, perverted, by political sermons, their influence over the people, who, while they trusted that from those fountains they could draw the living waters of truth, became the dupes of factious lies and sophistry. Thus encouraged, the heir of the Stuarts landed in Scotland; and the spirit of that people being in a great measure jacobite, and very generally averse to the union, he met with such success as, had their independence subsisted, would probably have established him on the throne.

But Scotland was now doomed to wait on the fortunes of her more powerful ally; and, on his invasion of England, the 1 This is well put by bishop Willis, in ity on the other.” Argument to prove his speech on the bill against Atterbury, the Affections of the People of England Parl. Hist.

viii. 305. In a pamphlet en-to be the best Security for the Governtitled English Advice to the Freeholders ment, p. 11 (1716). This is the pamphlet (Somers Tracts, xiii. 621), ascribed to At-written to recommend lenity towards the terbury himself, a most virulent attack rebels, which Addison has answered in is made on the government, merely be-the Freeholder. It is invidious, and percause what he calls the church party had haps secretly jacobite. Bolingbroke obbeen thrown out of office.’” Among all serves, in the letter already quoted, that who call themselves whigs,” he says, the pretender’s journey from Bar, in 1714, ” and are of any consideration as such, was a mere farce, no party being ready name me the man I cannot prove to be to receive him; but ” the menaces of the an inveterate enemy to the church of whigs, backed by some very rash declaraEngland, and I will be a convert that in-tions [those of the king], and little cirstant to their cause.” It must be owned cumstances of humor, which frequently perhaps that the whig ministry might offend more than real injuries, and by the better have avoided some reflections on entire change of all persons in employthe late times in the addresses of both ment, blew up the coals.” P. 34. Then, houses; and still more, some not very he owns, the tories looked to Bar. “The constitutional recommendations to the violence of the whigs forced them into electors, in the proclamation calling the the arms of the pretender.” It is to be new parliament in 1714. Parl. Hist. vi. remarked on all this, that, by Boling44, 50. “Never was prince more uni-broke’s own account, the tories, if they versally well received by subjects than his had no “formed design ” or ” settled res. present majesty on his arrival; and never olution”

that way, were not very deterwas less done by a prince to create a mined in their repugnance before the change in people’s affections. But so it queen’s death; and that the chief viois, a very observable change hath haplence of which they complained was, that pened. Evil infusions were spread on the George chose to employ his friends rather one hand; and, it may be, there was too than his enemies. great a stoicism or contempt of popular

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ANNE, GEO. I. & II. REBELLION OF 1715. 225 noisy partisans of hereditary right discredited their faction by its cowardice. Few rose in arms to support the rebellion, compared with those who desired its success, and did not blush to see the gallant savages of the Highlands shed their blood that a supine herd of priests and country gentlemen might enjoy the victory. The severity of the new government after the rebellion has been often blamed; but I know not whether, according to the usual rules of policy, it can be proved that the execution of two peers and thirty other persons, taken with arms in flagrant rebellion, was an unwarrantable excess of punishment. There seems a latent insinuation in those who have argued on the other side, as if the jacobite rebellion, being founded on an opinion of right, was more excusable than an ordinary treason a proposition which it would not have been quite safe for the reigning dynasty to acknowledge. Clemency, however, is the standing policy of constitutional governments, as severity is of despotism; and if the ministers of George I. might have extended it to part of the inferior sufferers (for surely those of higher rank were the first to be selected) with safety to their master, they would have done well in sparing him the odium that attends all political punishments.l It will be admitted on all hands at the present day that the charge of high treason in the impeachments Impeachagainst Oxford and Bolingbroke was an intemper-ment of tory ate excess of resentment at their scandalous dere-ministers liction of the public honor and interest. The danger of a sanguinary revenge inflamed by party spirit is so tremendous that the worst of men ought perhaps to escape rather than suffer by a retrospective, or, what is no better, a constructive extension of the law. The particular charge of treason was that in the negotiation for peace they had endeavored to procure the city of Tournay for the king of France; which 1 The trials after this rebellion were There seems, however, upon the whole, not conducted with quite that appearance to have been greater and less necessary of impartiality which we now exact from severity after the rebellion in 1745; and judges. Chief baron Montagu repri-upon this latter occasion it is impossible manded a jury for acquitting some per-not to reprobate the execution of Mr. Rat. sons indicted for treason; and Tindal, cliffe (brother of that earl of Derwentan historian very strongly on the court water who had lost his head in 1716), side, admits that the dying speeches of after an absence of thirty years from some of the sufferers made an impression his country, to the sovereign of which on the people, so as to increase rather he had never professed allegiance, nor than lessen the number of jacobites. could owe any, except by the fiction of Continuation of Rapin, p. 501 (fol. edit.). our law. VOL. III. 15

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226 IMPEACHMENT OF MINISTERS. CHAP. XVr. was maintained to be an adhering to the queen’s enemies within the statute of Edward III.1 But as this construction could hardly be brought within the spirit of that law, and the motive was certainly not treasonable or rebellious, it would have been incomparably more constitutional to treat so gross a breach of duty as a misdemeanor of the highest kind. This angry temper of the commons led ultimately to the abandonment of the whole impeachment against lord Oxford; the upper house, though it had committed Oxford to the Tower, which seemed to prejudge the question as to the treasonable character of the imputed offence, having two years afterwards resolved that the charge of treason should be first determined, before they would enter on the articles of less importance; a decision with which the commons were so ill satisfied that they declined to go forward with the prosecution. The resolution of the peers was hardly conformable to precedent, to analogy, or to the dignity of the house of commons, nor will it perhaps be deemed binding on any future occasion; but the ministers prudently suffered themselves to be beaten, rather than aggravate the fever of the people by a prosecution so full of delicate and hazardous questions.2 One of these questions, and by no means the least important, would doubtless have arisen upon a mode of defence alleged by the earl of Oxford in the house, when the articles of impeachment were brought up. “My lords,” he said, “if ministers of state, acting by the immediate commands of their sovereign, are afterwards to be made accountable for their proceedings, it may, one day or other, be the case of all the members of this august assembly.“3 It was indeed undeniable that the queen had been very desirous of peace, 1

Parl. Hist. 73. It was carried against shown themselves more passionate than Oxford, by 247 to 127, sir Joseph Jekyll in the case of lord Strafford. strongly opposing it, though he had said 2 Parl. Hist. vii.

486. The division was before (id. 67) that they had more than 88 to 56.

There was a schism in the sufficient evidence againstBolingbroke on whig party at this time; yet I should the statute of Edward III. A motion suppose the ministers might have prewas made in the lords to consult the vented this defeat if they had been anxjudges whether the articles amounted to ious to do so. It seems, however, by a treason, but lost by 84
to 52. Id. 154. letter in Coxe’s Memoirs of WValpole, Lord Cowper on this occasion challenged vol. ii. p. 123, that the government were all the lawyers in England to disprove for dropping the charge of treason against that proposition. The proposal of refer-Oxford,’ it being very certain that there ence to the judges was perhaps prema-is not sufficient evidence to convict him ture; but the house must surely have of that crime,” but for pressing those of done this before their final sentence, or misdemeanor. s Parl. Hist. vii. 105.

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ANNE, GEO. I. & II. IMPEACHMENT OF MINISTERS. 227 and a party, as it were, to all the counsels that tended to it. Though it was made a charge against the impeached lords that the instructions to sign the secret preliminaries of 1711 with M. Mesnager, the French envoy, were not under the great seal, nor countersigned by any minister, they were certainly under the queen’s signet, and had all the authority of her personal command. This must have brought on the yet unsettled and very delicate question of ministerial responsibility in matters where the sovereign has interposed his own command; a question better reserved, it might then appear, for the loose generalities of debate than to be determined with the precision of criminal law. Each party, in fact, had in its turn made use of the queen’s personal authority as a shield; the whigs availed themselves of it to parry the attack made on their ministry, after its fall, for an alleged mismanagement of the war in Spain before the battle of Almanza;l and the modern constitutional theory was by no means so established in public opinion as to bear the rude brunt of a legal argument. Anne herself, like all her predecessors, kept in her own hands the reins of power; jealous, as such feeble characters usually are, of those in whom she was forced to confide (especially after the ungrateful return of the duchess of Marlborough for the most affectionate condescension), and obstinate in her judgment from the very consciousness of its weakness, she took a share in all business, frequently presided in meetings 1 Parl. Hist. vi. 972.

Burnet, 560, he says, “the nature of our constitution makes some observations on the vote requires that public acts should be issued passed on this occasion, censuring the out in his majesty’s name; but for all late ministers for advising an offensive that, my lords, he is not the author of war in Spain. ” A resolution in council them.” [But, in a much earlier debate, is only the sovereign’s act, who, upon Jan. 12, 1711, the earl of Rochester said, hearing his councillors deliver their ” For several years they had been told opinions, forms his own resolution: a that the queen was to answer for everycouncillor may indeed be liable to cen-thing; but he hoped that time was over; sure for what he may say at that board; that according to the fundamental conbut the resolution taken there has been stitution of this kingdom the ministers hitherto treated with a silent respect; are accountable for all, and therefore he but by that precedent it will be hereafter hoped nobody would -nay, nobody subject to a parliamentary inquiry.” durst -name the queen in this debate.” Speaker Onslow justly remarks that these Parl. Hist. vi. 472. So much does the general and indefinite sentiments are occasional advantage of urging an arguliable to much exception, and that the ment in debate lead men to speak against bishop did not try them by his whig their own principles, for nothing could principles. The first instance where I be more repugnant to those of the high find the responsibility of some one for tories, who reckoned Rochester their every act of the crown strongly laid down chief, than such a theory of the consti. is in a speech of the duke of Argyle in tution as he here advances. -1845.] 1739. Parl. Iist.

ix. 1138. “It is true.”

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228 THE SEPTENNIAL ACT. CHAP. XVI. of the cabinet, and sometimes gave directions without their advice.1 The defence set up by lord Oxford would undoubtedly not be tolerated at present, if alleged in direct terms, by either house of parliament; however it may sometimes be deemed a sufficient apology for a minister, by those whose bias is towards a compliance with power, to insinuate that he must either obey against his conscience, or resign against his will. Upon this prevalent disaffection, and the general dangers Bill for of the established government, was founded that septennial measure so frequently arraigned in later times, parliaments the substitution of septennial for triennial parliaments.2 The ministry deemed it too perilous for their master, certainly for themselves, to encounter a general election in 1717; but the arguments adduced for the alteration, as it was meant to be permanent, were drawn from its permanent expediency. Nothing can be more extravagant than what is sometimes confidently pretended by the ignorant, that the legislature exceeded its rights by this enactment; or, if that cannot legally be advanced, that it at least violated the trust of the people, and broke in upon the ancient constitution. The law for triennial parliaments was of little more than twenty years’ continuance. It was an experiment, which, as was argued, had proved unsuccessful; it was subject, like every other law, to be repealed entirely, or to be modified at discretion.8 As a question of 1 “Lord Bolingbroke used to say that 2 [” Septennial parliaments were a% the restraining orders to the duke of first a direct usurpation of the rights of Ormond were proposed in the cabinet the people; for by the same authority council, in the queen’s presence, by the that one parliament prolonged their own earl of Oxford, who had not communi-power to seven years, they might have cated his intention to the rest of the min-continued it to twice seven. or, like the isters; and that lord Bolingbroke was parliament of 1641, have made it perpeton the point of giving his opinion against ual.” Priestley on Government 1771, p.

it, when the queen, without suffering the 20. Similar assertions were common, matter to be debated, directed these or-grounded on the ignorant assumption ders to be sent, and broke up the coun-that the septennial act prolonged the cil. This story was told by the late lord original duration of parliament, whereas Bolingbroke to my father.” Note by it in fact only limited, though less than lord Hardwicke on Burnet. (Oxf. edit. the triennial act which it repealed, the vi. 119.) The noble annotator has given old prerogative of the crown to keep the us the same anecdote in the Hardwicke same parliament during the life of the State Papers, ii. 482; but with this vari-reigning king. -1845.] ance, that lord Bolingbroke there ascribes 3 [The whole tory party, according to the orders to the queen herself, though Bolingbroke, had become avowedly jacohe conjectured them to have proceeded bite by the summer of 1715. He lays from lord Oxford. [This fact is men-this as far as he can on the impeachtioned by Bolingbroke himself, in the ments of himself and others. But Letters on the Study of History, Boling-though these measures were too violent, broke’s Works, vol. iv. p. 129.- 1845.] and calculated to exasperate a fallen

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ANNE, GEO. I. & II. ATTEMPTS TO REPEAL IT. 229 constitutional expediency, the septennial bill way doubtless open at the time to one serious objection. Every one admitted that a parliament subsisting indefinitely during a king’s life, but exposed at all times to be dissolved at his pleasure, would become far too little dependent on the people, and far too much so upon the crown. But, if the period of its continuance should thus be extended from three to seven years, the natural course of encroachment, or some momentous circumstances like the present, might lead to fresh prolongations, and gradually to an entire repeal of what had been thought so important a safeguard of its purity. Time has happily put an end to apprehensions which are not on that account to be reckoned unreasonable.1

Many attempts have been made to obtain a return to triennial parliaments, the most considerable of which was in 1733, when the powerful talents of Walpole and his opponents were arrayed on this great question. It has been less debated in modern times than some others connected with parliamentary reformation. So long indeed as the sacred duties of choosing the representatives of a free nation shall be perpetually disgraced by tumultuary excess, or, what is far worse, by gross corruption and ruinous profusion (evils which no effectual pains are taken to redress, and which some apparently desire to perpetuate, were it only to throw discredit upon the popular part of the constitution), it would be evidently inexpedient to curtail the present duration of parliament. But, even independently of this not insuperable objection, it may well be doubted whether triennial elections would make much perceptible difference in the course of government, and whether that difference would on the whole be beneficial.

It will be found, I believe, on a retrospect of the last hundred years, that the house of commons would have acted, in the main, on the same principles had the elections been more frequent; and certainly the effects of a dissolution, when it has occurred in the regular order, have seldom been very important. It is also to be considered whether an assembly which so much takes to itself the charparty, we have abundant proofs of the its own duration, was not quite idle. We increase of jacobitism in the preceding find from Coxe’s Memoirs of Walpole, ii. year. -1845.] 217, that in 1720, when the first septen1 Parl. Hist. vii. 292. The apprehen nial house of commons had nearly run sion that parliament, having taken this its term, there was a project of once step, might go on still farther to protract more prolonging its life.

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230 PEERAGE BILL. CHAP. XVI acter of a deliberative council on all matters of policy, ought to follow with the precision of a weather-glass the unstable prejudices of the multitude. There are many who look too exclusively at the functions of parliament as the protector of civil liberty against the crown, functions, it is true, most important, yet not more indispensable than those of steering a firm course in domestic and external affairs, with a circumspectness and providence for the future which no wholly democratical government has ever yet displayed. It is by a middle position between an oligarchical senate and a popular assembly that the house of commons is best preserved both in its dignity and usefulness, subject indeed to swerve towards either character by that continual variation of forces which act upon the vast machine of our commonwealth.

But what seems more important than the usual term of duration is that this should be permitted to take its course, except in cases where some great change of national policy may perhaps justify its abridgment. The crown would obtain a very serious advantage over the house of commons if it should become an ordinary thing to dissolve parliament for some petty ministerial interest, or to avert some unpalatable resolution. Custom appears to have established, and with some convenience, the substitution of six for seven years as the natural life of a house of commons; but an habitual irregularity in this respect might lead in time to consequences that most men would deprecate. And it may here be permitted to express a hope that the necessary dissolution of parliament within six months of a demise of the crown will not long be thought congenial to the spirit of our modern government. A far more unanimous sentence has been pronounced by Peerage posterity upon another great constitutional quesbill. tion that arose under George I. Lord Sunderland persuaded the king to renounce his important prerogative of making peers; and a bill was supported by the ministry, limiting the house of lords, after the creation of a very few more, to its actual numbers. The Scots were to have twentyfive hereditary, instead of sixteen elective, members of the house, a provision neither easily reconciled to the union, nor required by the general tenor of the bill. This measure was carried with no difficulty through the upper house, whose interests were so manifestly concerned in it. But a similar

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ANNE, GEO. I. & II. ARGUMENTS ON IT. 231 motive, concurring with the efforts of a powerful malecontent party, caused its rejection by the commons.1 It was justly thought a proof of the king’s ignorance or indifference in everything that concerned his English crown, that he should have consented to so momentous a sacrifice, and Sunderland was reproached for so audacious an endeavor to strengthen his private faction at the expense of the fundamental laws of the monarchy. Those who maintained the expediency of limiting the peerage had recourse to uncertain theories as to the ancient constitution, and denied this prerogative to have been originally vested in the crown. A more plausible argument was derived from the abuse, as it was then generally accounted, of creating at once twelve peers in the late reign, for the sole end of establishing a majority for the court, a resource which would be always at the command of successive factions, till the British nobility might become as numerous and venal as that of some European states. It was argued that there was a fallacy in concluding the collective power of the house of lords to be augmented by its limitation, though every single peer would evidently become of more weight in the kingdom; that the wealth of the whole body must bear a less proportion to that of the nation, and would possibly not exceed that of the lower house, while on the other hand it might be indefinitely multiplied by fresh creations; that the crown would lose one great engine of corrupt influence over the commons, which could never be truly independent while its principal members were looking on it as a stepping-stone to hereditary honors.2 Though these reasonings, however, are not destitute of considerable weight, and the unlimited prerogative of augmenting the peerage is liable to such abuses, at least in theory, as might overthrow our form of government, while, in the opinion of some, whether erroneous or not, it has actually been exerted with too little discretion, the arguments against any legal limitation seem more decisive. The crown has been carefully restrained by statutes, and by the responsibility of its advisers; the commons, if they transgress their boundaries, are annihilated by a proclamation; but against the ambition, or, what is much more likely, the perverse 1 Parl. Hist. vii.

589. the author of a tract entitled Six Ques2 The arguments on this side are urged tions Stated and Answered. by Addison, in the Old Whig; and by

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232 CAUSE OF DISAFFECTION. CHAP. XVI. haughtiness of the aristocracy, the constitution has not furnished such direct securities. And, as this would be prodigiously enhanced by a consciousness of their power, and by a sense of self-importance which every peer would derive from it after the limitation of their numbers, it might break out in pretensions very galling to the people, and in an oppressive extension of privileges which were already sufficiently obnoxious and arbitrary. It is true that the resource of subduing an aristocratical faction by the creation of new peers could never be constitutionally employed, except in the case of a nearly equal balance; but it might usefully hang over the heads of the whole body, and deter them from any gross excesses of faction or oligarchical spirit. The nature of our government requires a general harmony between the two houses of parliament; and indeed any systematic opposition between them would of necessity bring on the subordination of one to the other in too marked a manner; nor had there been wanting, within the memory of man, several instances of such jealous and even hostile sentiments as could only be allayed by the inconvenient remedies of a prorogation or a dissolution. These animosities were likely to revive with more bitterness when the country gentlemen and leaders of the commons should come to look on the nobility as a class into which they could not enter, and the latter should forget more and more, in their inaccessible dignity, the near approach of that gentry to themselves in respectability of birth and extent of possessions.’ These innovations on the part of the new government were maintained on the score of its unsettled state and want of hold on the national sentiment. It may seem a reproach to the house of Hanover that, connected as it ought to have been with the names most dear to English hearts, the protestant religion and civil liberty, it should have been driven to try the resources of tyranny, and to demand more authority, to exercise more control, than had been necessary for the worst 1 The speeches of Walpole and others, inducements to the bill, that the lords in the Parliamentary Debates, contain would part with scandalum magnatum, the whole force of the arguments against and permit the commons to administer the peerage bill. Steele, in the Plebeian, an oath; and that the king would give opposed his old friend and coadjutor, up the prerogative of pardoning after an Addison, who has been thought by John-impeachment. Coxe’s Walpole, ii. 172. son to have forgotten a little in party and Mere trifles, in comparison with the inno controversy their ancient friendship. vations projected. Lord Sunderland held out, by way of

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ANNE, GEO. I. & II. JACOBITISM OF THE CLERGY. 233 of its predecessors.

Much of this disaffection was owing to the cold reserve of George I., ignorant of the language, alien from the prejudices of his people, and continually absent in his electoral dominions, to which he seemed to sacrifice the nation’s interest and the security of his own crown. It is certain that the acquisition of the duchies of Bremen and Verden for Hanover in 17161 exposed Great Britain to a very serious danger, by provoking the king of Sweden to join in a league for the restoration of the pretender.2 It might have been impossible (such was the precariousness of our revolutionsettlement) to have made the abdication of the electorate a condition of the house of Brunswick’s succession; but the consequences of that connection, though much exaggerated by the factious and disaffected, were in various manners detrimental to English interests during these two reigns; and not the least, in that they estranged the affections of the people from sovereigns whom they regarded as still foreign.8 The tory and jacobite factions, as I have observed, were powerful in the church. This had been the case ever since the Revolution.

The avowed nonjurors Jacobitism were busy with the press, and poured forth, es-among the pecially during the encouragement they received clergy. 1 [These luchies had been conquered stand on the principles of liberty. Parl from Sweden by Denmark, who ceded Hist. v. 153, 267, 604; vii. 276; viii. 38. them to George I., as elector of Hanover, But some of these suspensions were too though they had never been resigned by long, especially the last, from October Charles XII. This is not consonant to 1722 to October 1723. Sir Joseph Jekyll, the usage of nations, and at least was an with his usual zeal for liberty, moved to act of hostility in George I. against a power reduce the time to six months. who had not injured him. Yet Towns-3 [The regent duke of Orleans not only hend affected to defend it, as beneficial assisted the pretender in his invasion of to English interests; though the contrary Scotland in 1715, but was concerned in is most evident, as it provoked Charles to the scheme of Charles XII. to restore espouse the pretender’s cause. Coxe’s him by arms in the next year, as apWalpole, vol. i. p. 87.-1845.] pears by a despatch from the baron de s The letters in Coxe’s Memoirs of Besenval, French envoy at Warsaw, Walpole, vol. ii., abundantly show the dated Feb.

2,1716, which is printed from German nationality, the impolicy and the D6ept des Affaires Etrangeres, in neglect of his duties, the rapacity and Mem. de Besenval (his descendant), vol. petty selfishness, of George I.

The whigs i. p. 102. So much was Voltaire miswere much dissatisfied; but fear of los-taken in his assertion that the regent, ing their places made them his slaves. having discovered this intrigue through Nothing can be more demonstrable than his spies, communicated it to George I. that the king’s character was the main It was his own plot, though he soon cause of preserving jacobitism, as that afterwards allied himself to England, a of his competitor was of weakening it. remnant of the policy of 1715. But The habeas corpus was several times Sunderland and Stanhope, though too suspended in this reign, as it had been in obsequious to their master’s German that of William. Though the perpetual views, had the merit of bringing over conspiracies of the jacobites afforded a Dubois to a steady regard for the house sufficient apology for this measure, it of Hanover, which influenced the court was invidiously held up as inconsistent of Versailles for many years. - 1845.] rith a government which professed to

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234 CONVOCATION. CHAP. XVI. m part of Anne’s reign, a multitude of pamphlets, sometimes argumentative, more often virulently libellous. Their idle cry that the church was in danger, which both houses in 1704 thought fit to deny by a formal vote, alarmed a senseless multitude. Those who took the oaths were frequently known partisans of the exiled family; and those who affected to disclaim that cause defended the new settlement with such timid or faithless arms as served only to give a triumph to the adversary.1 About the beginning of William’s reign grew up the distinction of high and low churchmen; the first distinguished by great pretensions to sacerdotal power, both spiritual and temporal, by a repugnance to toleration, and by a firm adherence to the tory principle in the state.

the latter by the opposite characteristics. These were pitched against each other in the two houses of convocation, an assembly which virtually ceased to exist under George I. The convocation of the province of Canterbury (for that C onvocation f York seems never to have been important) is Convocation. summoned by the archbishop’s writ, under the king’s direction, along with every parliament, to which it bears analogy both in its constituent parts and in its primary functions. It consists (since the Reformation) of the suffragan bishops, forming the upper house; of the deans, archdeacons, a proctor or proxy for each chapter, and two from each diocese, elected by the parochial clergy, who together constitute the lower house. In this assembly subsidies were granted, and ecclesiastical canons enacted. In a few instances under Henry VIII. and Elizabeth they were consulted as to momentous questions affecting the national religion; the supremacy of the former was approved in 1533, the articles of faith were confirmed in 1562, by the convocation. But their power to enact fresh canons without the king’s license was expressly taken away by a statute of Henry VIII.; and, even subject to this condition, is limited by several later acts of parliament (such as the acts of uniformity under Elizabeth and Charles II., that confirming, and therefore rendering unalterable, the thirty-nine articles, those relating to sonresidence and other church matters), and still more perhaps I [The practice of using a collect be-avoid praying for the king. It is profore the sermon, instead of the form pre-hibited by a royal proclamation of Dec. scribed by the 55th canon, seems to have 11, 1714. Hist. Reg. i. 78.

- 1845.] originated with the jacobite clergy, to

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ANNE, GEO. I. & II. CONVOCATION. 235 by the doctrine established in Westminster Hall, that new ecclesiastical canons are not binding on the laity, so greatly that it will ever be impossible to exercise it in any effectual manner. The convocation accordingly, with the exception of that in 1603, when they established some regulations, and that in 1640 (an unfortunate precedent), when they attempted some more, had little business but to grant subsidies, which however were from the time of Henry VIII.

always confirmed by an act of parliament; an intimation, no doubt, that the legislature did not wholly acquiesce in their power even of bindilng the clergy in a matter of property. This practice of ec,,i -astical taxation was discontinued in 1664, at a time when the authority and preeminence of the church stood very high, so that it could not then have seemed the abandonment of an important privilege. From this time the clergy have been taxed at the same rate and in the same manner with the laity.’ 1 Parl. Hist. iv. 310. “It was first law.” Speaker Onslow’s note on Burnet settled by a verbal agreement between (Oxf. edit. iv. 508).

archbishop Sheldon and the lord chancel- [In respect to this taxation of the lor Clarendon, and tacitly given into by clergy by parliament, and not by convothe clergy in general as a great ease to cation, it is to be remembered that by far them in taxations. The first public act the greater part of modern taxes, being of any kind relating to it was an act of indirect, must necessarily fall on them in parliament in 1665, by which the clergy common with the laity. The convocawere, in common with the laity, charged tion. like the parliament, were wont to with the tax given in that act, and were grant tenths and fifteenths at fixed rates, discharged from the payment of the sub-supposed to arise from movable property. sidies they had granted before in convo-These being wholly disused from 1665 cation; but in this act of parliament of inclusive, other modes of taxation have 1665 there is an express saving of the supplied their place. But the clergy are right of the clergy to tax themselves in charged to the landtax for their beneconvocation if they think fit; but that fices, and to the window-tax for their has been never done since, nor attempt-parsonages, as well as to occasional ined, as I know of, and the clergy have come-taxes. Exclusive of these, it does been constantly from that time charged not appear that any imposts can be said with the laity in all public aids to the to fall on them, from which they could crown by the house of commons. In have been exempt by retaining the right consequence of this (but from what pe-of convocation. They have not been riod I cannot say), without the interven-losers in any manner by the alteration. tion of any particular law for it, except The position of speaker Onslow, that the what I shall mention presently, the cler-clergy have enjoyed the privilege of gy (who are not lords of parliament) voting at county elections, in virtue of have assumed, and without any objec-their ecclesiastical freeholds, only since tion enjoyed, the privilege of voting in their separate taxation has been disconthe election of members of the house of tinued, may be questioned: proofs of its commons, in virtue of their ecclesiastical exercise, as far as I remember, can be freeholds. This has constantly been prac-traced higher. In a conference between tised from the time it first began; there the two houses of parliament in 1671, are two acts of parliament which suppose on the subject of the lords’ right to alter it to be now a right. The acts are 10
a money-bill, it is said ” the clergy have Anne, c. 23; 18 Geo. II. c. 18.

Gibson, a right to tax themselves, and it is part bishop of London, said to me that this of the privilege of their estate. Doth the (the taxation of the clergy out of convo-upper convocation house alter what the cation) was the greatest alteration in the lower grant? Or do the lords or comconstitution ever made without an express mons ever abate any part of their gift?

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236 CONVOCATION. CHAP. XVI. It was the natural consequence of this cessation of all business that the convocation, after a few formalities, either adjourned itself or was prorogued by a royal writ; nor had it ever, with the few exceptions above noticed, sat for more than a few days, till its supply could be voted. But, about the time of the Revolution, the party most adverse to the new order sedulously propagated a doctrine that the convocation ought to be advised with upon all questions affecting the church, and ought even to watch over its interests as the parliament did over those of the kingdom.’ The commons had so far encouraged this faction as to refer to the convocation the great question of a reform in the liturgy for the sake of comprehension, as has been mentioned in the last chapter, and thus put a stop to the king’s design. It was not suffered to sit much during the rest of that reign, to the great discontent of its ambitious leaders. The most celebrated of these, Atterbury, published a book, entitled the Rights and Privileges of an English Convocation, in answer to one by Wake, afterwards archbishop of Canterbury. The speciousness of the former, sprinkled with competent learning on the subject, a graceful style, and an artful employment of topics, might easily delude at least the willing reader. Nothing indeed could, on reflection, appear more inconclusive than Atterbury’s arguments. Were we even to admit the perfect analogy of a convocation to a parliament, it could not be doubted that the king may, legally speaking, prorogue the latter at his pleasure; and that, if neither money were reYet they have a power to reject the clergy ought to bear to the whole in the whole. But if abatement should be made, new mode of assessment. See Statutes of it would insensibly go to a raising, and the Realm, 16 & 17 Car. II. c. 1.deprive the clergy of their ancient right 1845.] to tax themselves.” Hatsell’s Preced-1 The first authority I have observed ents, iii. 390. Thus we perceive that the for this pretension is an address of the change alleged to have taken place in house of lords, Nov. 19, 1675, to the 1665 was only de facto, and that the an-throne, for the frequent meeting of the cient practice of taxation by the convo-convocation, and that they do make to cation was not understood to be abrogat-the king such representations as may be ed. The essential change was made by for the safety of the religion established. the introduction of new methods of Lords’ Journals. This address was reraising money. In 1665 the sum of newed February 22, 1677.

But what 2,447,0001. was granted, to be raised in took place in consequence I am not apthree years, by an assessment in each prised. It shows, however, some degree county, on real and personal property of dissatisfaction on the part of the bishof all kinds; but the old rates of subsidy ops, who must be presumed to have set are not mentioned in this or in any lat-forward these addresses, at the virtual er tax-bill. Probably the arrangement annihilation of their synod, which natwith archbishop Shelden was founded on urally followed from its relinquishment the practical difficulty of ascertaining of self-taxation. the proportion which the grant of the

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ASNE, GEO. I. & II. BISHOP HOADLEY. 237 quired to be granted nor laws to be enacted, a session would be very short. The church had by prescription Its ncroasha right to be summoned in convocation; but no ments.

prescription could be set up for its longer continuance than the crown thought expedient; and it was too much to expect that William III. was to gratify his half-avowed enemies with a privilege of remonstrance and interposition they had never enjoyed. In the year 1701 the lower house of convocation pretended to a right of adjourning to a different day from that fixed by the upper, and consequently of holding separate sessions.

They set up other unprecedented claims to independence, which were checked by a prorogation.1 Their aim was in all respects to assimilate themselves to the house of commons, and thus both to set up the convocation itself as an assembly collateral to parliament, and in the main independent of it, and to maintain their coordinate power and equality in synodical dignity to the prelates’ house. The succeeding reign, however, began under tory auspices, and the convocation was in more activity for some years than at any former period. The lower house of that assembly still distinguished itself by the most factious spirit, and especially by insolence towards the bishops, who passed in general for whigs, and whom, while pretending to assert the divine rights of episcopacy, they labored to deprive of that preeminence in the Anglican synod which the ecclesiastical constitution of the kingdom had bestowed on them.2 None was more prominent in their debates than Atterbury himself, whom, in the zenith of tory influence, at the close of her reign, the queen reluctantly promoted to the see of Rochester. The new government at first permitted the convocation to hold its sittings; but they soon excited a flame which consumed themselves by an attack on Hoadley, bishop of Bangor, who had preached a sermon abound-Hoadley ing with those principles concerning religious liberty of which he had long been the courageous and powerful assertor.8 1 Kennet, 799, 842; Burnet, 280. This ries, had requested ” that some synodical assembly had been suffered to sit, proba-notice might be taken of the dishonor bly, in consequence of the tory maxims done to the church by a sermon preached which the ministry of that year pro-by Mr. Benjamin Hoadley, at St.

Lawfessed. rence Jewry, Sept. 29, 1705. containing 2 Wilkins’s Concilia, iv. Burnet, pas-positions contrary to the doctrine of the sim. Boyer’s Life of Queen Anne, 225. church, expressed in the first and second Somerville, 82, 124. parts of the homily against disobedience 3 The lower house of convocation, in and wilful rebellion.” Wilkins, iv. 634. the late reign, among their other vaga

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238 CONVOCATION PROROGUED. CHAP. XVI. The lower house of convocation thought fit to denounce, through the report of a committee, the dangerous tenets of this discourse, and of a work not long before published by the bishop. A long and celebrated war of pens instantly commenced, known by the name of the Bangorian controversy, managed, perhaps on both sides, with all the chicanery of polemical writers, and disgusting both from its tediousness and from the manifest unwillingness of the disputants to speak ingenuously what they meant;1 but as the principles of Hoadley and his advocates appeared in the main little else than those of protestantism and toleration, the sentence of the laity, in the temper that was then gaining ground as to ecclesiastical subjects, was soon pronounced in their favor; and the highchurch party discredited themselves by an opposition to what now pass for the incontrovertible truisms of religious liberty. In the ferment of that age, it was expedient for the state to scatter a little dust over the angry insects; Convocation the convocation was accordingly prorogued in 1717, no longer suf-and has never again sat for any business.2 Those feredtosit. who are imbued with high notions of sacerdotal power have sometimes deplored this extinction of the Anglican great council;.and though its necessity, as I have already observed, cannot possibly be defended as an ancient part of the constitution, there are not wanting specious arguments for the expediency of such a synod. It might be urged that the church, considered only as an integral member of the commonwealth, and the greatest corporation within it, might 1 These qualities are so apparent that, with some inconsistency in becoming so after turning over some forty or fifty large a partaker of her honors and emoltracts, and consuming a good many uments. He even admitted the usefulhours on the Bangorian controversy, I ness of censures for open immoralities, should find some difficulty in stating though denying all church authority to with precision the propositions in dis-oblige any one to external communion, pute. It is, however, evident that a or to pass any sentence which should dislike, not perhaps exactly to the house determine the condition of men with reof Brunswick, but to the tenor of George spect to the favor or displeasure of God. I.‘s administration, and to Hoadley him-Hoadley’s Works, ii. 465, 493. Another self, as an eminent advocate for it, who great question in this controversy was had been rewarded accordingly, was at that of religious liberty, as a civil right, the bottom a leading motive with most which the convocation explicitly denied.

of the church party; some of whom, And another related to the much debated such as Hare, though originally of a exercise of private judgment in religion, whig connection, might have had disap-which, as one party meant virtually to pointments to exasperate them. take away, so the other perhaps unreaThere was nothing whatever in Hoad-sonably exaggerated. Some other disley’s sermon injurious to the established putes arose in the course of the combat, endowments and privileges, nor to the particularly the delicate problem of the discipline and government of the Eng-value of sincerity as a plea for material lish church, even in theory. If this had errors. been the case, he might be reproached 2 Tindal, 539.

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ANNE, GEO. I. & II. ANTI-TOLERATION STATUTES. 239 justly claim that right of managing its own affairs which belongs to every other association; that the argument from abuse is not sufficient, and is rejected with indignation when applied, as historically it might be, to representative governments and to civil liberty; that, in the present state of things, no reformation even of secondary importance can be effected without difficulty, nor any looked for in greater matters, both from the indifference of the legislature and the reluctance of the clergy to admit its interposition. It is answered to these suggestions that we must take experience when we possess it, rather than analogy, for our guide; that ecclesiastical assemblies have in all ages and countries been mischievous where they have been powerful, which those of our wealthy and numerous clergy must always be; that if, notwithstanding, the convocation could be brought under the management of the state (which by the nature of its component parts might seem not unlikely), it must lead to the promotion of servile men and the exclusion of merit still more than at present; that the severe remark of Clarendon, who observes that of all mankind none form so bad an estimate of human affairs as churchmen, is abundantly confirmed by experience; that the representation of the church in the house of lords is sufficient for the protection of its interests; that the clergy have an influence which no other corporation enjoys over the bulk of the nation, and may abuse it for the purposes of undue ascendency, unjust restraint, or factious ambition; that the hope of any real good in reformation of the church by its own assemblies, to whatever sort of reform we may look, is utterly chimerical; finally, that as the laws now stand, which few would incline to alter, the ratification of parliament must be indispensable for any material change. It seems to admit of no doubt that these reasonings ought much to outweigh those on the opposite side. In the last four years of the queen’s reign some inroads had been made on the toleration granted to dis-nfringesenters, whom the highchurch party held in ab-mentsofthe horrence. They had for a long time inveighed byetatutes against what was called occasional conformity, or under Anne. the compliance of dissenters with the provisions of the test act in order merely to qualify themselves for holding office or entering into corporations. Nothing could, in the eyes of

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240 ANTI-TOLERATION STATUTES. CHAP. XVI. sensible men, be more advantageous to the church, if a reunion of those who had separated from it were advantageous, than this practice. Admitting even that the motive was selfinterested, has an established government, in church or state, any better ally than the selfinterestedness of mankind? Was it not what a presbyterian or independent minister would denounce as a base and worldly sacrifice? and if so, was not the interest of the Anglican clergy exactly in an inverse proportion to this? Any one competent to judge of human affairs would predict, what has turned out to be the case, that, when the barrier was once taken down for the sake of convenience, it would not be raised again for conscience; that the most latitudinarian theory, the most luikewarm dispositions in religion, must be prodigiously favorable to the reigning sect; and that the dissenting clergy, though they might retain, or even extend, their influence over the multitude, would gradually lose it with those classes who could be affected by the test. But even if the tory faction had been cool-headed enough for such reflections, it has unfortunately been sometimes less the aim of the clergy to reconcile those who differ from them than to keep them in a state of dishonor and depression. Hence, in the first parliament of Anne, a bill to prevent occasional conformity more than once passed the commons; and, on its being rejected by the lords, a great majority of William’s bishops voting against the measure, an attempt was made to send it up again in a very reprehensible manner, tacked, as it was called, to a grant of money: so that, according to the pretension of the commons in respect to such bills, the upper house must either refuse the supply or consent to what they disapproved.1 This, however, having miscarried, and the next parliament being of better principles, nothing farther was done till 1711, when lord Nottingham, a vehement high-churchman, having united with the whigs against the treaty of peace, they were injudicious enough to gratify him by concurring in a bill to prevent occasional conformity.2 This was followed up by the ministry in a more decisive attack on the toleration, an act for preventing the growth of schism, which extended and confirmed one of Charles II., enforcing on all school-masters, and even on all teachers in private families, a declaration of 1 Parl. Hist. vi. 862. 2 10

Anne, c. 2.

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ANNE, GEO. I. & II. THEIR REPEAL. 241 conformity to the established church, to be made before the bishop, from whom a license for exercising that profession was also to be obtained.1 It is impossible to doubt for an instant, that, if the queen’s life had preserved the tory government for a few years, every vestige of the toleration would have been effaced. These statutes, records of their adversaries’ power, the whigs, now lords of the ascendant, determined to abrogate. The dissenters were unanimously zealous for the house of Hanover and for the ministry; the church of very doubtful loyalty to the crown, and still less affection to the Theyare whig name.

In the session of 1719, accordingly, repealed by the act against occasional conformity, and that re-te whgs. straining education, were repealed.2 It had been the intention to have also repealed the test act; but the disunion then prevailing among the whigs had caused so formidable an opposition even to the former measures, that it was found necessary to abandon that project. Walpole, more cautious and moderate than the ministry of 1719, perceived the advantage of reconciling the church as far as possible to the royal family and to his own government; and it seems to have been an article in the tacit compromise with the bishops, who were not backward in exerting their influence for the crown, that he should make no attempt to abrogate the laws which gave a monopoly of power to the Anglican communion. We may presume also that the prelates undertook not to obstruct the acts of indemnity passed from time to time in favor of those who had not duly qualified themselves for the offices they held; and which, after some time becoming regular, have in effect thrown open the gates to protestart dissenters, though still subject to be closed by either house of parliament, if any jealousies should induce them to refuse their assent to this annual enactment.8 1 12 Anne, c. 7. Parl. Hist. vi.

1349. 2 5 Geo. I. c. 4. The whigs out of The schism act, according to Lockhart, power, among whom was Walpole, facwas promoted by Bolingbroke, in order tiously and inconsistently opposed the to gratify the high tories. and to put lord repeal of the schism act, so that it Oxford under the necessity of declaring passed with much difficulty. Parl. Hist.

himself one way or other. ” Though the vii. 569. earl of Oxford voted for it himself, he 3 The first act of this kind appears to concurred with those who endeavored to have been in 1727. 1 Geo. II. c. 23. It restrain some parts which they reckoned was repeated next year, intermitted the too severe; and his friends in both next, and afterwards renewed in every houses, particularly his brother, auditor year of that reign except the fifth, the Harley, spoke and voted against it very seventeenth, the twenty-second, the earnestly.’” P. 462. twenty-third, the twenty-sixth, and the VOL. IL. 16

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242 TOLERATION FULLY ESTABLISHED. CHAP. XVI Meanwhile the principles of religious liberty, in all senses Principles of the word, gained strength by this eager con’rof toleestabn versy, naturally pleasing as they are to the proud lished. independence of the English character, and congenial to those of civil freedom, which both parties, tory as much as whig, had now learned sedulously to maintain. The nonjuring and highchurch factions among the clergy produced few eminent men; and lost credit, not more by the folly of their notions than by their general want of scholarship and disregard of their duties. The university of Oxford was tainted to the core with jacobite prejudices; but it must be added that it never stood so low in respectability as a place of education.’ The government, on the other hand, was studious to promote distinguished men; and doubtless the hierarchy in the first sixty years of the eighteenth century might very advantageously be compared, in point of conspicuous ability, with that of an equal period that ensued. The maxims of persecution were silently abandoned, as well as its practice; Warburton, and others of less name, taught those of toleration with as much boldness as Hoadley, but without some of his more invidious tenets; the more popular writers took a liberal tone; the names of Locke and Montesquieu acquired immense authority; the courts of justice discountenanced any endeavor to revive oppressive statutes; thirtieth. Whether these occasional intioned. I can scarcely quote Amherst’s terruptions were intended to prevent the Terrae Filius as authority; it is a very nonconformists from relying upon it, or clever, though rather libellous, invective were caused by some accidental circum-against the university of Oxford at that stance, must be left to conjecture. I be-time; but, from internal evidence, as lieve that the renewal has been regular well as the confirmation which better every year since the accession of George authorities afford it, I have no doubt III.

It is to be remembered that the that it contains much truth. present work was first published before Those who have looked much at the the repeal of the test act in 1828. ephemeral literature of these two reigns 1 We find in Gutch’s Collectanea must be aware of many publications fixCuriosa, vol.

i. p. 53, a plan, ascribed to ing the charge of prevalent disaffection lord-chancellor Macclesfield, for taking on this university down to the death of away the election of heads of colleges George II.; and Dr. King, the famous from the fellows, and vesting the nomi-jacobite master of St.

Mary Hall, admits nation in the great officers of state, in that some were left to reproach him for order to cure the disaffection and want of apostasy in going to court on the accesdiscipline which was justly complained sion of the late king in 1760. The genof. This remedy would have been pereral reader will remember the Isis, by haps the substitution of a permanent for Mason, and the triumph of Isis, by a temporary evil. It appears also that Warton; the one a severe invective, the archbishop Wake wanted to have had a other an indignant vindication: but in bill, in 1716. for asserting the royal su-this instance, notwithstanding the adpremacy, and better regulating the clergy vantages which satire is supposed to of the two universities (Coxe’s Walpole, have over panegyric, we must award the ii. 122); but I do not know that the laurel to the worst cause, and, what is precise nature of this is anywhere men-more extraordinary, to the worse poet.

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ANNE, GEO. I. & II. BANISHMENT OF ATTERBURY. 243 and not long after the end of George II.‘s reign, it was adjudged in the house of lords, upon the broadest principles o’i toleration laid down by lord Mansfield, that nonconformity with the established church is recognized by the law, and iiot an offence at which it connives. Atterbury, bishop of Rochester, the most distinguished of the party denominated highchurch, became the vie-Banishment tim of his restless character and implacable disaffec-of Atterbury. tion to the house of Hanover. The pretended king, for some years after his competitor’s accession, had fair hopes from different powers of Europe,- France, Sweden, Russia, Spain, Austria (each of whom, in its turn, was ready to make use of this instrument), and from the powerful faction who panted for his restoration. This was unquestionably very numerous, though we have not as yet the means of fixing with certainty on more than comparatively a small number of names; but a conspiracy for an invasion from Spain and a simultaneous rising was detected in 1722, which implicated three or four peers, and among them the bishop of Rochester.’ The evidence, however, though tolerably convincing, being insufficient for a verdict at law, it was thought expedient to pass a bill of pains and penalties against this prelate, as well as others against two of his accomplices. The proof; besides many corroborating circumstances, consisted in three letters relative to the conspiracy, supposed to be written by his secretary Kelly, and appearing to be dictated by the bishop. He was deprived of his see, and banished the kingdom for life.2 This met with strong opposition, not 1 Layer, who suffered on account of they should take on the king’s death. this plot, had accused several peers, Lord Orford’s Works, iv. 287. among others lord Cowper, who corn-2 State Trials, xvi. 324. Parl. Hist. plained to the house of the publication viii. 195, et post. Most of the bishops of his name; and indeed, though he was voted against their restless brother; and at that time strongly in opposition to the Willis, bishop of Salisbury, made a very court, the charge seems wholly incredible. good but rather too acrimonious a speech Lord Strafford, however, was probably on the bill.

Id. 298. Hoadley, who was guilty; lords North and Orrery certainly no orator, published two letters in the so. Parl. Hist. viii. 203. There is even newspaper, signed Britannicus, in answer ground to suspect that Sunderland, to to Atterbury’s defence; which, after all use Tindal’s words, “in the latter part that had passed, he might better have of his life, had entered into correspond-spared. Atterbury’s own speech is cerences and designs which would have been tainly below his fame, especially the fatal to himself or to the public.” P. 657. peroration. Id.

267. This is mentioned bi Coxe, i. 165; and No one, I presume, will affect to doubt certainly confirmed by Lockhart, ii. 68, the reality of Atterbury’s connections 70. But the reader would hardly give with the Stuart family, either before his credit to such a story as Horace Walpole attainder or during his exile. The proofs has told, that he coolly consulted sir of the latter were published by lord Robert, his political rival, as to the part iailes in 1768, and may be found also in

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244 DECLINE OF JACOBITES. CHAP. XVI. limited to the enemies of the royal family, and is open to the same objection as the attainder of sir John Fenwickthe danger of setting aside those precious securities against a wicked government which the law of treason has furnished. As a vigorous assertion of the state’s authority over the church we may commend the policy of Atterbury’s deprivation, but perhaps this was ill purchased by a mischievous precedent. It is, however, the last act of a violent nature in any important matter which can be charged against the English legislature.

No extensive conspiracy of the Jacobite faction seems ever Decline of to have been in agitation after the fall of Atterthe jaco-bury. The pretender had his emissaries perpetbites. ually alert, and it is understood that an enormous mass of letters from his English friends is in existence;1 but very few had the courage, or rather folly, to plunge into so desperate a course as rebellion. Walpole’s prudent and vigilant administration, without transgressing the boundaries of that free constitution for which alone the house of Brunwick had been preferred, kept in check the disaffected. He wisely sought the friendship of cardinal Fleury, aware that no othel power in Europe than France could effectually assist the banished family. After his own fall and the death of Fleury, new combinations of foreign policy arose; his successors returned to the Austrian connection; a war with France broke out; the grandson of James II. became master, for a moment, of Scotland, and even advanced to the centre of this peaceful and unprotected kingdom. But this was hardly more ignominious to the government than to the jacobites themselves; none of them joined the standard of their pretended sovereign; and the rebellion of 1745 was conclusive, by its own temporary success, against the possibility of his restoration.2 From this time the government, Nicholls’s edition of Atterbury’s Cor-Mahon has communicated some informarespondence, i. 148. Additional evidence tion from these papers in his History of is furnished by the Lockhart Papers, England; but the number of persons envol. ii. passim. gaged in connection with the pretender 1 The Stuart Papers obtained lately is rather less than had been expected. from Rome, and now in his majesty’s 1841. possession, are said to furnish copious It is said that there were not less than evidence of the jacobite intrigues, and to dfty jacobites in the parliament of 1728.

affect some persons not hitherto sus-Coxe, ii. 294. pected. We have reason to hope that 2 The tories, it is observed in the MS. they will not be long withheld from the journal of Mr. Yorke (second earl of public, every motive for concealment Hardwicke), showed no sign of affection being wholly at an end. 1827.-Lord to the government at the time when the

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ANNE, GEO. I. & II. JACOBITE PREJUDICES. 245 even when in search of pretexts for alarm, could hardly affect to dread a name grown so contemptible as that of the Stuart party. It survived, however, for the rest of the reign of George II., in those magnanimous compotations which had always been the best evidence of its courage and fidelity. Though the Jacobite party had set before its eyes an object most dangerous to the public tranquillity, and Prejudices which, could it have been attained, would have aeains the reigning brought on again the contention of the seven-family. teenth century; though, in taking oaths to a government against which they were in conspiracy, they showed a systematic disregard of obligation, and were as little mindful of allegiance, in the years 1715
and 1745, to the prince they owned in their hearts, as they had been to him whom they had professed to acknowledge, it ought to be admitted that they were rendered more numerous and formidable than was necessary by the faults of the reigning kings or of their ministers. They were not latterly actuated for the most part (perhaps with very few exceptions) by the slavish principles of indefeasible right, much less by those of despotic power.1 invasion was expected in 1743, but treated Culloden, 1827. -I should not have it all with indifference. Parl. Hist. xiii. used, of course, the word absurd, if lord 668. In fact, a disgraceful apathy per-Mahon’s History had been published, in vaded the nation; and according to a which that acute and impartial writer letter from Mr. Fox to Mr.

Winnington inclines to the opinion of Charles Edin 1745, which I only quote from recol-ward’s probable success. I am still, howlection, it seemed perfectly uncertain, ever, persuaded that either the duke of from this general passiveness, whether Cumberland must have overtaken him the revolution might not be suddenly before he reached London, or that his brought about. Yet very few compara-small army would have been beaten by tively, I am persuaded, had the slightest the king. 1842. attachment or prejudice in favor of the 1 [Even in 1715 this was not the case house of Stuart; but the continual ab-with the jacobite aristocracy. ” When sence from England, and the HIanoverian you were first driven into this interest,” predilections, of the two Georges, the says Bolingbroke to sir W. Windham, I feebleness and factiousness of their ad-may appeal to you for the notion which ministration and of public men in gen-the party had.

You thought of restoring eral, and an indefinite opinion of mis-him by the strength of the tories, and of government, raised through the press, opposing a tory king to a whig king. though certainly without oppression or You took him up as the instrument of arbitrary acts, had gradually alienated your revenge and of your ambition. You tae moss of the nation.

But this would looked on him as your creature, and not lead men to expose their lives and never once doubted of making what terms fortunes; and hence the people of Eng-you pleased with him. This is so true land, a thing almost incredible, lay quiet that the same language is still held to and nearly unconcerned, while the little the catechumens in jacobitism.

Were army of lIighlanders came every day the contrary to be avowed even now, the nearer to the capital. It is absurd, how-party in England would soon disunite. ever, to suppose that they could have Instead of making the pretender their been really euccessful by marching on-tool, they are his.

Instead of having in ward; th, -ugh their defeat might have view to restore him on their own terms, been more glorious at Finchley than at they are laboring to do it without any

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246 JEALOUSY OF THE CROWN. CHAP. XVI. They had been so long in opposition to the court, they had so often spoken the language of liberty, that we may justly Jealousy of believe them to have been its friends. It was the crown. the policy of Walpole to keep alive the strongest prejudice in the mind of George II., obstinately retentive of prejudice, as such narrow and passionate minds always are, against the whole body of the tories. They were ill received at court, and generally excluded not only from those departments of office which the dominant party have a right to keep in their power, but from the commission of the peace, and every other subordinate trust.1 This illiberal and selfish course retained many, no doubt, in the pretender’s camp, who must have perceived both the improbability of his restoration, and the difficulty of reconciling it with the safety of our constitution. He was indeed, as well as his son, far less worthy of respect than the contemporary Brunswick kings; without absolutely wanting capacity or courage, he gave the most undeniable evidence of his legitimacy by constantly resisting the counsels of wise men, and yielding to those of priests 2 while his son, the fugitive of Culloden, despised and deserted by his own party, insulted by the court of France, lost with the advance of years even the respect and compassion which wait on unceasing misfortune, the last sad inheritance of the house of Stuart.3 But they were little terms; that is, to speak properly, they I take to be a certain mark of a mean are ready to receive him on his,” &c.

spirit and a wicked soul; at least I am This was written in 1717, and seems to sure that the contrary quality, when it indicate that the real jacobite spirit of is not due to weakness of understanding, hereditary right was very strong among is the fruit of a generous temper and an the people. And this continued through honest heart. Prone to judge ill of all the reign of George I., as I should infer mankind, he will rarely be seduced by from the press. But Bolingbroke him-his credulity; but I never knew a man self had great influence in subduing it so capable of being the bubble of his afterwards. and, though of course not distrust and jealousy.” Letter to sir W. obliterated, we trace it less and less down Wyndham. Thus Bolingbroke, under to the extinction of the jacobite party in the sting of his impetuous passions, the last years of George II.

Leslie’s writ-threw away the scabbard when he quarings would have been received with scorn relied with the house of Stuart, as he by the young jacobites of 1750. Church had done with the whigs at home. But mobs were frequent in 1715; but we James was not a man altogether without scarcely, I think, find much of them capacity: his private letters are well and afterwards. In London, and the chief sensibly written. Like his father, he had towns, the populace were chiefly whig. - a narrow and obstinate, but not a weak, 1845.] understanding. His son, Charles Ed1 See Parl. Hist.

xiii. 1244; and other ward, appears to me inferior to him in proofs might be brought from the same this respect, as well as in his moral prinwork, as well as from miscellaneous au-ciple.- 1845.] thorities of the age of George II. 3 See in the Lockhart Papers, ii. 565, 2 [Bolingbroke’s character of James is a curious relation of Charles Edward’s not wholly to be trusted. ” He is natu-behavior in refusing to quit France after rally inclined to believe the worst, which the peace of Aix-la-Chapelle. It was so

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ANNE, GEO. I. & II. JEALOUSY OF THE CROWN. 247 known in England, and from unknown princes men are prone to hope much: if some could anticipate a redress of every evil from Frederick prince of Wales, whom they might discover to be destitute of respectable qualities, it cannot be wondered at that others might draw equally flattering proginsolent and absurd that the government to dispute the right of the house of was provoked to arrest him at the opera, Bruuswick after 1760. Dr. King himself, and literally to order him to be bound it may be observed, laughs at the old hand and foot; an outrage which even passive obedience doctrine (page 193); so his preposterous conduct could hardly far was he from being a jacobite of that excuse. school. Dr. King was in correspondenice with A few nonjuring congregations lingered this prince for some years after the lat-on far into the reign of George III., preter’s foolish, though courageous, visit to sided over by the successors of some London in September, 1750; which he bishops whom Lloyd of Norwich, the left again in five days, on finding him-last of those deprived at the Revolution, self deceived by some sanguine friends. had consecrated in order to keep up the King says he was wholly iguorant of our schism. A list of these is given in D’Oyhistory and constitution. “I never ly’s Life of Sancroft, vol. ii. p. 34, whence heard him express any noble or benev-it would appear that the last of them olent sentiment, the certain indications died in 1779. T can trace the line a little of a great soul and good heart; or dis-farther: a bishop of that separation, cover any sorrow or compassion for the named Cartwright, resided at Shrewsmisfortune of so many worthy men who bury in 1793, carrying on the business had suffered in his cause.” Anecdotes of a surgeon. State Trials, xxiii. 1073. of his own Times, p. 201. He goes on to I have heard of similar congregations in charge him with love of money and other the west of England still later. He had, faults. But his great folly in keeping a however, become a very loyal subject to mistress, Mrs.

Walkinshaw, whose sister king George: a singular proof of that was housekeeper at Leicester House, tenacity of life by which religious sects, alarmed the jacobites.’; These were after dwindling down through neglect, all men of fortune and distinction, and excel frogs and tortoises; and that, even many of them persons of the first quality, when they have become almost equally who attached themselves to the P. as to cold-blooded! [A late publication, Latha person who they imagined might be bury’s History of the Nonjurors, gives made the instrument of saving their several names of nonjuring bishops down country. They were sensible that by to the close of the century; though it Walpole’s administration the English does not absolutely follow that all who government was become a system of frequented their congregations would corruption; and that Walpole’s succes-have refused the oath of allegiance. Of sors, who pursued his plan without any such strict jacobites there were, as I of his abilities, had reduced us to such a have said, but few left south of the deplorable situation that our commercial Tweed after the accession of George III. interest was sinking, our colonies in Still some there may have been, unianger of being lost, and Great Britain, known by name, in the middling ranks; which, if her powers were properly ex-and Mr.

Lathbury has quoted jacobite erted, as they were afterwards in Mr.

pamphlets as late as 1759, and probably Pitt’s administration, was able to give the authors of these did not renounce laws to other nations, was become the their opinions in the next year. One or contempt of all Europe.” P. 208. This two writers in this strain have met my is in truth the secret of the continuance observation rather later. The last is in of jacobitism. But possibly that party 1774, when, an absurd letter against the were not sorry to find a pretext for Revolution having been inadvertently breaking off so hopeless a connection, admitted into the Morning Chronicle which they seem to have done about and Public Advertiser, Mr. Fox, with 1755. Mr. Pitt’s great successes recon-less good nature than belonged to him, ciled them to the administration; and induced the house of commons to direct his liberal conduct brought back those a prosecution of the printers by the at. who had been disgusted by an exclusive torney-general; and they were sentenced policy. On the accession of a new king to three months’ imprisonment. Parl. they flocked to St. James’s; and probably Hist. xvii. 1054. Annual Register, 1774,, scarcely one person of the rank of a gen-p. 164. -1845.] tieman, south of the Tweed, was found

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248 CAUSES OF DISAFFECTION. CHAP. XVI nostics from the accession of Charles Edward. It is almost certain that, if either the claimant or his son had embraced the protestant religion, and had also manifested any superior strength of mind, the German prejudices of the reigning family would have cost them the throne, as they did the people’s affections.

Jacobitism, in the great majority, was one modification of the spirit of liberty burning strongly in the nation at this period. It gave a rallying point to that indefinite discontent which is excited by an ill opinion of rulers, and to that disinterested though ignorant patriotism which boils up in youthful minds. The government in possession was hated, not as usurped, but as corrupt; the banished line was demanded, not so much because it was legitimate, but because it was the fancied means of redressing grievances and regenerating the constitution. Such notions were doubtless absurd; but it is undeniable that they were common, and had been so almost from the Revolution. I speak only, it will be observed, of the English jacobites; in Scotland the sentiments of loyalty and national pride had a vital energy, and the Highland chieftains gave their blood, as freely as their southern allies did their wine, for the cause of their ancient kings.1 No one can have looked in the most cursory manner at the political writings of these two reigns, or at the debates of parliament, without being struck by the continual predictions that our liberties were on the point of extinguishment, or at least by apprehensions of their being endangered. It might seem that little or nothing had been gained by the Revolution, and by the substitution of an elective dynasty. This doubtless it was the interest of the Stuart party to 1 [Lord Mahon printed in 1842, but and that he is supposed to have kept up only for the Roxburghe Club, some ex-some connection with the Irish priesttracts from despatches (in the State Pa-hood to the end of his life, so as to recper Office) of the British envoy at Flor-omniend bishops to the court of Rome. ence, containing information, from time But though sir Horace Mann.

in a letter to time. as to the motions and behavior of the date Nov. 11, 1783, is i’ every day of Charles Edward. Were it not for the more convinced that something of im pordifficulty under which our minister at tance is carrying on between the court of that court must generally labor to find France and the pretender, and has reaany materials for a letter to the secretary son to suspect that the latter either has of state, we might feel some wonder at a connection with the king of Sweden. or the gravity with which sir Horace Mann is endeavoring to gain his friendship,” he seems to treat the table-talk and occasion-soon after discovers that this important al journeys of the poor old exile, even matter was only an application to France down to 1786. It may be said that his for a pension, which Gustavus III., then excessive folly might render him capable in Italy, would out of compassion have of any enterprise, however extravagant, been glad to promote. -1845.] -as long as he had bodily strength left;

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AN.E, GEO. I. & II. POLICY OF WALPOLE. 249 maintain or insinuate; and, in the conflict of factions, those who, with far opposite views, had separated from the court, seemed to lend them aid. The declamatory exaggerations of that able and ambitious body of men who cooperated against the ministry of sir Robert Walpole have long been rejected; and perhaps, in the usual reflux of popular opinion, his domestic administration (for in foreign policy his views, so far as he was permitted to act upon them, appear to have been uniformly judicious) has obtained of late rather an undue degree of favor. I have already observed that, for the sake of his own ascendency in the cabinet, he kept up unnecessarily the distinctions of the whig and tory parties, and thus impaired the stability of the royal house which it was his chief care to support. And though his government was so far from anything oppressive or arbitrary that, considered either relatively to any former times, or to the extensive disaffection known to subsist, it was uncommonly moderate; yet, feeling or feigning alarm at the jacobite intrigues on the one hand, at the democratic tone of public sentiment and of popular writings on the other, he labored to preserve a more narrow and. oligarchical spirit than was congenial to so great and brave a people, and trusted not enough, as indeed is the general fault of ministers, to the sway of good sense and honesty over disinterested minds. But, as he never had a complete influence over his master, and knew that those who opposed him had little else in view than to seize the reins of power and manage them worse, his deviations from the straight course are more pardonable. The clamorous invectives of this opposition, combined with the subsequent dereliction of avowed principles by many among them when in power, contributed more than anything else in our history to cast obloquy and suspicion, or even ridicule, on the name and occupation of patriots. Men of’ sordid and venal characters always rejoice to generalize so convenient a maxim as to the non-existence of publicvirtue. It may not, however, be improbable, that many of those who took a part in this long contention were less insincere than it has been the fashion to believe, though led too far at the moment by their own passions, as well as by the necessity of coloring highly a picture meant for the multitude, and.reduced afterwards to the usual compromises and concessions, without which power in this country is ever unattainable.

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250 AGGRANDIZEMENT OF THE CROWN. CHAr. XVI But waiving a topic too generally historical for the present chapter, it will be worth while to consider what sort of ground there might be for some prevalent subjects of declamation; and whether the power of government had not, in several respects, been a good deal enhanced since the beginning of the century. By the power of government I mean not so much the personal authority of the sovereign as that of his ministers, acting perhaps without his directions; which, since the reign of William, is to be distinguished, if we look at it analytically, from the monarchy itself. I. The most striking acquisition of power by the crown Changes in in the new model of government, if I may use the constitu-SUch an expression, is the permanence of a regution whereon. it was lar military force. The reader cannot need to be founded. reminded that no army existed before the civil war, that the guards in the reign of Charles II. were about 5000 men, that in the breathing-time between the peace of Ryswick and the war of the Spanish succession the commons could not be brought to keep up more than 7000 troops. Nothing could be more repugnant to the national prejudices than a standing army. The tories, partly from regard to the ancient usage of the constitution, partly, no doubt, from a factious or disaffected spirit, were unanimous in protesting against it. The most disinterested and zealous lovers of liberty came with great suspicion and reluctance into what seemed so perilous an innovation. But the court, after the accession of the house of Hanover, had many reasons for insisting upon so great an augmentation of its power and security. It is remarkable to perceive by what stealthy advances this came on. Two long wars had rendered the army a profession for men in the higher and middling classes, and familiarized the nation to their dress and rank; it had achieved great honor for itself and the English name; and in the nature of mankind the patriotism of glory is too often an overmatch for that of liberty. The two kings were fond of warlike policy, the second of war itself; their schemes, and those of their ministers, demanded an imposing attitude in negotiation, which an army, it was thought, could best give; the cabinet was for many years entangled in alliances, shifting sometimes rapidly, but in each combination liable to produce the interruption of peace. In the new system which rendered the houses of parliament partakers in the executive

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ANNE, GEO. I. & I. PERMANENT MILITARY FOECE. 251 administration, they were drawn themselves into the approbation of every successive measure, either on-the propositions of ministers, or, as often happens more indirectly, but hardly less effectually, by passing a negative on those of their opponents. The number of troops for which Permanent a vote was annually demanded, after some varia-military tions, in the first years of George I., was, during force. the whole adminsitration of sir Robert Walpole, except when the state of Europe excited some apprehension of disturbance, rather more than 17,000 men, independent of those on the Irish establishment, but including the garrisons of Minorca and Gibraltar. And this continued with little alteration to be our standing army in time of peace during the eighteenth century. This army was always understood to be kept on foot, as it is still expressed in the preamble of every mutiny-Apprehenbill, for better preserving the balance of power in sions from it.

Europe. The commons would not for an instant admit that it was necessary as a permanent force, in order to maintain the government at home. There can be no question, however, that the court saw its advantage in this light; and I am not perfectly sure that some of the multiplied negotiations on the continent in that age were not intended as a pretext for keeping up the army, or at least as a means of exciting alarm for the security of the established government. In fact, there would have been rebellions in the time of George I., not only in Scotland, which perhaps could not otherwise have been preserved, but in many parts of the kingdom, had the parliament adhered with too pertinacious bigotry to their ancient maxims. Yet these had such influence that it was long before the army was admitted by every one to be perpetual; and I do not know that it has ever been recognized as such in our statutes. Mr. Pulteney, so late as 1732, a man neither disaffected nor democratical, and whose views extended no farther than a change of hands, declared that he ” always had been, and always would be, against a standing army of any kind; it was to him a terrible thing, whether under the denomination of parliamentary or any other. A standing army is still a standing army, whatever name it be called by; they are a body of men distinct from the body of the people; they are governed by different laws; blind obedience and an entire submission to the orders of their com

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252 ESTABLISHMENT OF MILITIA. CHAP. XVI. manding officer is their only principle. The nations around us are already enslaved, and have been enslaved by those very means; by means of their standing armies they have every one lost their liberties; it is indeed impossible that the liberties of the people can be preserved in any country where a numerous standing army is kept up.“1 This wholesome jealousy, though it did not prevent what was indeed for many reasons not to be dispensed with, the establishment of a regular force, kept it within bounds which possibly the administration, if left to itself, would have gladly overleaped. A clause in the mutiny-bill, first inserted in 1718, enabling courts-martial to punish mutiny and desertion with death, which had hitherto been only cognizable as capital offences by the civil magistrate, was carried by a very small majority in both houses.2 An act was passed in 1735, directing that no troops should come within two miles of any place, except the capital or a garrisoned town, during an election; 8 and on some occasions both the commons and the courts of justice showed that they had not forgotten the maxims of their ancestors as to the supremacy of the civil power.4 A more important measure was projected by men of independent principles, at once to secure the kingdom against attack, invaded as it had been by rebels in 1745, and thrown into the most ignominious panic on the rumors of a French armament in 1756, to take away the pretext for a large standing force, and perhaps to furnish a guarantee against any evil purposes to which in future times it might Establishbe subservient, by the establishment of a national mcnt of militia, under the sole authority indeed of the militia.

crown, but commanded by gentlemen of sufficient estates, and not liable, except in war, to be marched out of its proper county. This favorite plan, with some reluctance on the part of the government, was adopted in 1757.6

But 1 Parl. Hist. viii. 904. and constitution of this kingdom.” The 2 Id.

vii. 536. persons concerned in this, having been 3 8 Geo. II. c. 30. Parl.

Hist. viii. 883. ordered to attend the house, received on 4 The military having been called in their knees a very severe reprimand from to quell an alleged riot at Westminster the speaker. Parl. IIist. ix. 326. Upl6ection in 1741, it was resolved, Dec. 22, on some occasion, the circumstances of ” that the presence of a regular body of which I do not recollect, chief-justice armed soldiers at an election of members Willes uttered some laudable sentiments to serve in parliament is a high infringe-as to the subordination of military Inent of the liberties of the subject, a power.

manifest violation of the freedom of elec-5 Lord Hardwicke threw out the militia tisns, and an open defiance of the laws bill in 1756, thinking some of its clauses

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ANNE, GEO. I. & II. ESTABLISHMENT OF MILITIA. 253 though, during the long period of hostilities, which have unfortunately ensued, this embodied force has doubtless placed the kingdom in a more respectable state of security, it has not much contributed to diminish the number of our regular forces; and, from some defects in its constitution, arising out of too great attention to our ancient local divisions, and of too indiscriminate a dispensation with personal service, which has filled the ranks with the refuse of the community, the militia has grown unpopular and burdensome, rather considered of late by the government as a means of recruiting the army than as worthy of preservation in itself, and accordingly thrown aside in time of peace; so that the person who acquired great popularity as the author of this institution, lived to see it worn out and gone to decay, and the principles, above all, upon which he had brought it forward, just enough remembered to be turned into ridicule. Yet the success of that magnificent organization which, in our own time, has been established in France, is sufficient to evince the possibility of a national militia; and we know with what spirit such a force was kept up for some years in this country, under the name of volunteers and yeomanry, on its only real basis, that of property, and in such local distribution as convenience pointed out. Nothing could be more idle, at any time since the Revolution, than to suppose that the regular army would pull the speaker out of his chair, or in any manner be employed to confirm a despotic power in the crown. Such power, I think, could never have been the waking dream of either king or minister. But as the slightest inroads upon private rights and liberties are to be guarded against in any nation that deserves to be called free, we should always keep in mind not only that the military power is subordinate to the civil, but, as this subordination must cease where the former is frequently employed, that it should never be called upon in aid of the peace without sufficient cause.

Nothing would more break down this notion of the law’s supremacy than the perpetual interference of those who are really governed by another law; for the doctrine of some judges, that the soldier, being still a citizen, acts only in preservation of the public peace, as another citizen is bound to do, must be felt rather too republican, and, in fact, being 704. H.

Walpole’s Memoirs, ii. 45. Coxe’s adverse to the scheme. Par’ Hist. xv.

Memoirs of Lord Walpole, 450.

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254 INFLUENCE OF THE CROWN. CHAP. XVI. as a sophism, even by those who cannot find an answer to it. And, even in slight circumstances, it is not conformable to the principles of our government to make that vain display of military authority which disgusts us so much in some continental kingdoms. But, not to dwell on this, it is more to our immediate purpose that the executive power has acquired such a coadjutor in the regular army that it can in no probable emergency have much to apprehend from popular sedition. The increased facilities of transport, and several improvements in military art and science, which will occur to the reader, have in later times greatly enhanced this advantage. II. It must be apparent to every one that since the Restoration, and especially since the Revolution, an immense power has been thrown into the scale of both houses of parliament, though practically in more frequent exercise by the lower, in consequence of their annual session during several months, and of their almost unlimited rights of investigation, discussion, and advice. But, if the crown should by any means become secure of an ascendency in this asInfluence sembly, it is evident that, although the prerogaover parlia tamentby tive, technically speaking, might be diminished, pncs ioad the power might be the same, or even possibly more efficacious; and that this result must be proportioned to the degree and security of such an ascendency. A parliament absolutely, and in all conceivable circumstances, under the control of the sovereign, whether through intimidation or corrupt subservience, could not, without absurdity, be deemed a coordinate power, or indeed, in any sense, a restraint upon his will. This is, however, an extreme supposition, which no man, unless both grossly factious and ignorant, will ever pretend to have been realized. But, as it would equally contradict notorious truth to assert that every vote has been disinterested and independent, the degree of influence which ought to be permitted, or which has at any time existed, becomes one of the most important subjects in our constitutional policy. I have mentioned in the last chapter both the provisions Attempts to inserted in the act of settlement, with the design restrain it. of excluding altogether the possessors of public office from the house of commons, and the modifications of them by several acts of the queen. These were deemed by

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ANNE, GEO. I. & II. SECRET CORRUPTION. 255 the country party so inadequate to restrain the dependants of power fiom overspreading the benches of the commons, that perpetual attempts were made to carry the exclusive principle to a far greater length. In the two next reigns, if we can trust to the uncontradicted language of debate, or even to the descriptions of individuals in the lists of each parliament, we must conclude that a very undue proportion of dependants on the favor of government were made its censors and counsellors. There was still, however, so much left of an independent spirit, that bills for restricting the number of placemen, or excluding pensioners, met always with countenance; they were sometimes rejected by very slight majorities; and, after a time, sir Robert Walpole found it expedient to reserve his opposition for the surer field of the other house.1 After his fall, it was imputed with some justice to his successors, that they shrunk in power from the bold reformation which they had so frequently endeavored to effect; the king was indignantly averse to all retrenchment of his power, and they wanted probably both the inclination and the influence to cut off all corruption. Yet we owe to this ministry the place-bill of 1743, Place-bill which, derided as it was at the time, seems to of 1743. have had a considerable effect; excluding a great number of inferior officers from the house of commons, which has never since contained so revolting a list of court-deputies as it did in the age of Walpole.2 But while this acknowledged influence of lu-ecret corcrative office might be presumed to operate on ruption. 1 By the act of 6 Anne, c. 7, all per-Cox’s Walpole, ii. 537, 673. A bill of sons holding pensions from the crown the same gentleman to limit the number during pleasure were made incapable of of placemen in the house had so far worse sitting in the house of commons; which success, that it did not reach the Serbonwas extended by 1 Geo. I. c. 56, to those ian bog. Parl. Hist. xi.

323. Bishop who held them for any term of years. Sherlock made a speech against the preBut the difficulty was to ascertain the vention of corrupt practices by the penfact; the government refusing informa-sion bill, which, whether justly or not, tion. Mr. Sandys accordingly proposed a excited much indignation, and even gave bill in 1730, by which every member of rise to the proposal of a bill for putting the commons was to take an oath that he an end to the translation of bishops. Id. did not hold any such pension, and that, viii. 847. in case of accepting one, he would dis-2 25 Geo. II. c. 22. The king came close it to the house within fourteen days. very reluctantly into this measure: in This was carried by a small majority the preceding session of 1742, Sandys, through the commons, but rejected in the now become chancellor of the exchequer, other house, which happened again in had opposed it, though originally his 1734
and in 1740. Parl. Hist. viii. 789; own, alleging in no very parliamentary ix. 369; xi. 510. The king, in an angry manner that the new ministry had not note to lord Townshend, on the first yet been able to remove his majesty’s occasion, calls it’ this villanous bill.” prejudices. Parl.

Hist. xii. 896.

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256 SECRET CORRUPTION. CHAP. XVI. many stanch adherents of the actual administration, there was always a strong suspicion, or rather a general certainty, of absolute corruption. The proofs in single instances could never perhaps be established; which, of course, is not surprising. But no one seriously called in question the reality of a systematic distribution of money by the crown to the representatives of the people; nor did the corrupters themselves, in whom the crime seems always to be deemed less heinous, disguise it in private.1 It is true that the appropriation of supplies, and the established course of the exchequer, render the greatest part of the public revenue secure from misapplication; but, under the head of secret service money, a very large sum was annually expended without account, and some other parts of the civil list were equally free from all public examination.2 The committee of secrecy appointed after the resignation of Sir Robert Walpole endeavored to elicit some distinct evidence of this misapplication; but the obscurity natural to such transactions, and the guilty collusion of subaltern accomplices, who shrouded themselves in the protection of the law, defeated every hope of punishment, or even personal disgrace.8 This practice of direct bribery continued, beyond doubt, long afterwards, and is generally supposed to have ceased about the termination of the American war. There is hardly any doctrine with respect to our government more in fashion than that a considerable influence of the crown (meaning of course a corrupt influence) in both houses of parliament, and especially in the commons, has 1 Mr. Fox declared to the duke of New-count of the method by which payments castle, when the office of secretary of are made out of the exchequer, though state, and what was called the manage-valuable in some respects, seems rather ment of the house of commons, was of-intended to lead aside the unpractised fered to him, ” that he never desired to reader. touch a penny of the secret service money, 3 This secret committee were checked or to know the disposition of it, farther at every step for want of sufficient powthan was necessary to enable him to speak ers. It is absurd to assert, like Mr.Coxe, to the members without being ridiculous.”

that they advanced accusations which Doddington’s Diary, 15th March, 1754.

they could not prove, when the means H. Walpole confirms this in nearly the of proof were withheld. Scrope and Paxsame words. Mem. of last Ten Years, ton, the one secretary. the other solicitor, i. 332. to the treasury, being examined about 2 In Coxe’s Memoirs of Sir R. Walpole, very large sums traced to their hands, iii. 609, we have the draught, by that and other matters, refused to answer minister, of an intended vindication of questions that might criminate themhimself after his retirement from office, selves; and a bill to indemnify evidence in order to show the impossibility of mis-was lost in the upper house. Parl. Hist. applying public money, which, however, xii. 625 et post. he does not show; and his elaborate ac

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ANNE, GEO. I. & II. BREACH OF PRIVILEGE. 257 been rendered indispensable by the vast enhancement of their own power over the public administration.

It is doubtless most expedient that many servants of the crown should be also servants of the people; and no man who values the constitution would separate the functions of ministers of state from those of legislators.

The glory that waits on wisdom and eloquence in the senate should always be the great prize of an English statesman, and his high road to the sovereign’s favor. But the maxim that private vices are public benefits is as sophistical as it is disgusting; and it is self-evident, both that the expectation of a clandestine recompense, or, what in effect is the same thing, of a lucrative office, cannot be the motive of an upright man in his vote, and that, if an entire parliament should be composed of such venal spirits, there would be an end of all control upon the crown. There is no real cause to apprehend that a virtuous and enlightened government would find difficulty in resting upon the reputation justly due to it; especially when we throw into the scale that species of influence which must ever subsist, the sentiment of respect and loyalty to a sovereign, of friendship and gratitude to a minister, of habitual confidence in those intrusted with power, of averseness to confusion and untried change, which have in fact more extensive operation than any sordid motives, and which must almost always render them unnecessary. III. The cooperation of both houses of parliament with the executive government enabled the latter to convert to its own purpose what had often in for-ments for mer times been employed against it, the power breach of of inflicting punishment for breach of privilege. But as the subject of parliamentary privilege is of no slight importance, it will be convenient on this occasion to bring the whole before the reader in as concise a summary as possible, distinguishing the power, as it relates to offences committed by members of either house, or against them singly, or the houses of parliament collectively, or against the government and the public. 1. It has been the constant practice of the house of commons to repress disorderly or indecent behavior by a censure delivered through the speaker. Instances of this are even noticed in the Journals under Edward VI. and Mary; and VOL.

II. 17

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258 BREACH OF PRIVILEGE. CHAP. XVI. it is in fact essential to the regular proceedings of any assembly. In the former reign they also committed one of their members to the Tower. But in the famous ofmember-case of Arthur Hall in 1581, they established the first precedent of punishing one of their own body for a printed libel derogatory to them as a part of the legislature; and they inflicted the threefold penalty of imprisonment, fine, and expulsion.1 From this time forth it was understood to be the law and usage of parliament that the commons might commit to prison any one of their members for misconduct in the house, or relating to it.2 The right of imposing a fine was very rarely asserted after the instance of Hall.

But that of expulsion, no earlier precedent whereof has been recorded, became as indubitable as frequent and unquestioned usage could render it.

It was carried to a great excess by the long parliament, and again in the year 1680. These, however, were times of extreme violence; and the prevailing faction had an apology in the designs of the court, which required an energy beyond the law to counteract them. The offences too, which the whigs thus punished in 1680, were in their effect against the power and even existence of parliament. The privilege was far more unwarrantably exerted by the opposite party in 1714, against sir Richard Steele, expelled the house for writing The Crisis, a pamphlet reflecting on the ministry. This was, perhaps, the first instance wherein the house of commons so identified itself with the executive administration, independently of the sovereign’s person, as to consider itself libelled by those who impugned its measures.8 In a few instances an attempt was made to carry this farther, by declaring the party incapable of sitting in parliament. It is hardly necessary to remark that upon this rested the celebrated question of the Middlesex election in 1769. 1 See vol. i. pp.

271, 272. dett, the governor of the Tower required 2 [In the case of Mr.

Manley, con-the speaker’s warrant to be backed by mitted Nov. 9, 1696, for saying, in the the secretary of state; with which the debate on sir John Fenwick’s attainder, commons thought fit to put up, though that it would not be the first time people it cut at the root of the privilege of imhave repented of making their court to prisoning proprio jure. -1845.]

the government at the hazard of the 3 Parl. Hist. vi. 1265. Walpole says, liberties of the people, the speaker issued in speaking for Steele, “the liberty of his warrant to the lieutenant of the the press is unrestrained; how then shall Tower to receive him. Commons’ Jour-a part of the legislature dare to punish nals. It will be remembered that in that as a crime which is not declared to 1810, on the committal of sir F. Bur-be so by any law framed by the whole? “

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ANNE, GEO. I. & II. BREACH OF PRIVILEGE. 259 If a few precedents, and those not before the year 1680, were to determine all controversies of constitutional law, it is plain enough from the Journals that the house have assumed the power of incapacitation. But as such an authority is highly dangerous and unnecessary for any good purpose, and as, according to all legal rules, so extraordinary a power could not be supported except by a sort of prescription which cannot be shown, the final resolution of the house of commons, which condemned the votes passed in times of great excitement, appears far more consonant to just principles. 2. The power of each house of parliament over those who do not belong to it is of a more extensive consideration, and has lain open, in some respects, to more doubt than that over its own members. It has been exercised, in the first place, very frequently, and from an early period, in order to protect the members personally, and in their for offences properties, from anything which has been con-gainst strued to interfere with the discharge of their functions. Every obstruction in these duties, by assaulting, challenging, insulting any single representative of the commons, has from the middle of the sixteenth century downwards, that is, from the beginning of their regular Journals, been justly deemed a breach of privilege, and an offence against the whole body. It has been punished generally by commitment, either to the custody of the house’s officer, the sergeantat-arms, or to the king’s prison. This summary proceeding is usually defended by a technical analogy to what are called attachments for contempt, by which every court of record is entitled to punish by imprisonment, if not also by fine, any obstruction to its acts or contumacious resistance of them.

But it tended also to raise the dignity of parliament in the eyes of the people, at times when the government, and even the courts of justice, were not greatly inclined to regard it; and has been also a necessary safeguard against the insolence of power. The majority are bound to respect, and indeed have respected, the rights of every member, however obnoxious to them, on all questions of privilege. Even in the case most likely to occur in the present age, that of libels, which by no unreasonable stretch come under the head of obstructions, it would be unjust that a patriotic legislator, exposed to calumny for his zeal in the public cause, should be necessarily driven to a troublesome and uncertain process at law,

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260 BREACH OF PRIVILEGE. CHAP. XVI. when the offence so manifestly affects the real interests of parliament and the nation. The application of this principle must of course require a discreet temper, which was not perhaps always observed in former times, especially in the reign of William III.

Instances at least of punishment for breach of privilege by personal reflections are never so common as in the Journals of that turbulent period. The most usual mode, however, of incurring the animadversion of the house was by molestations in regard to property. It was the most ancient privilege of the commons to be free from all legal process, during the term of the session for nd for forty days before and after, except on offences charges of treason, felony, or breach of the peace. against the I have elsewhere mentioned the great case of Ferrers, under Henry VIII., wherein the house first, as far as we know, exerted the power of committing to prison those who had been concerned in arresting one of its members; and have shown that, after some little intermission, this became their recognized and customary right. Numberless instances occur of its exercise. It was not only a breach of privilege to serve any sort of process upon them. but to put them under the necessity of seeking redress at law for any civil injury. Thus abundant cases are found in the Journals where persons have been committed to prison for entering on the estates of members, carrying away timber, lopping trees, digging coal, fishing in their waters. Their servants, and even their tenants, if the trespass were such as to affect the landlord’s property, had the same protection.1 The grievance of so unparalleled an immunity must have been notorious, since it not only suspended at least the redress of creditors, but enabled rapacious men to establish in some measure unjust claims in respect of property; the alleged trespasses being generally founded on some disputed right. An act, however, was passed, rendering the members of both houses liable to civil suits during the prorogation of parliament.2 But they long continued to avenge the private injuries, real or pretended, of their members. On a complaint of breach of privilege by trespassing on a fishery 1 The instances are so numerous that anything could be done disagreeable to to select a few would perhaps give an a member, of which he might not inform Inadequate notion of the vast extension the house and cause it to be punished. which privilege received. In fact, hardly 2 12 Will. III. c.

8.

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ANNE, GEO. I. & II. BREACH OF PRIVILEGE. 261 (Jan. 25, 1768), they heard evidence on both sides, and determined that no breach of privilege had been committed; thus indirectly taking on them the decision of a freehold right. A few days after they came to a resolution, “that in case of any complaint of a breach of privilege, hereafter to be made by any member of this house, if the house shall adjudge there is no ground for such complaint, the house will order satisfaction to the person complained of for his costs and expenses incurred by reason of such complaint.“l But little opportunity was given to try the effect of this resolution, an act having passed in two years afterwards which has altogether taken away the exemption from legal process, except as to the immunity from personal arrest, which still continues to be the privilege of both houses of parliament.2 3. A more important class of offences against privilege is of such as affect either house of parliament collectively. In the reign of Elizabeth we have an instance of one committed for disrespectful words against the commons. A few others, either for words spoken or published libels, occur in the reign of Charles I. even before the long parliament; but those of 1641 can have little weight as precedents, and we may say nearly the same of the unjustifiable proceedings in 1680. Even since the Revolution we find too many proofs of encroaching pride or intemperate passion, to which a numerous assembly is always prone, and which the prevalent doctrine of the house’s absolute power in matters of privilege has not contributed much to restrain. The most remarkable may be briefly noticed. The commons of 1701, wherein a tory spirit was strongly predominant, by what were deemed its factious delays in voting supplies, and in seconding the measures of the king for the security of Europe, had exasperated all those who saw the nation’s safety in vigorous preparations for war, and provoked at last the lords to the most angry resolution which one house of parliament in a matter not affecting its privileges has ever recorded against the other.3 The grand jury 1 Journals, 11th Feb. It had been orig-3 Resolved, That whatever ill conseinally proposed that the member mak-quences may arise from the so long defering the complaint should pay the party’s ring the supplies for the year’s service costs and expenses, which was amend-are to be attributed to the fatal counsel ed, I presume, in consequence of some of putting off the meeting of a parliament doubt as to the power of the house to en-so long, and to unnecessary delays of the force it. house of commons. Lords’ Journals, 2 10 G. III. c.

50. 23d June, 1701. The commons had pro

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262 KENTISH PETITION OF 1701. CHAP. XVI. of Kent, and other freeholders of the county, presented accordingly a petition on the 8th of May, 1701, imploring Kentish them to turn their loyal addresses into bills of etition of supply (the only phrase in the whole petition that. could be construed into disrespect), and to enable his majesty to assist his allies before it should be too late. The tory faction was wrought to fury by this honest remonstrance. They voted that the petition was scandalous, insolent, and seditious, tending to destroy the constitution of parliament, and to subvert the established government of this realm; and ordered that Mr.

Colepepper, who had been most forward in presenting the petition, and all others concerned in it, should be taken into custody of the sergeant.1

Though no attempt was made on this occasion to call the authority of the house into question by habeas corpus or other legal remedy, it was discussed in pamphlets and in general conversation, with little advantage to a power so arbitrary, and so evidently abused in the immediate instance. viously come to a vote, that all the ill pepper gave way to this crushing presconsequences which may at this time at-sure, and having not long afterwards tend the delay of the supplies granted by (Parl. Hist. vi.

95) petitioned the house, the commons for the preserving the pub-and acknowledged himself at the bar lie peace and maintaining the balance of sorry for the scandalous and seditious Europe, are to be imputed to those who, to practices by him acted against the honprocure an indemnity for their own enor-or and privileges of that house, &c., mous crimes, have used their utmost en-they addressed the queen to stop prodeavors to make a breach between the ceedings against him. But a resolution two houses.

Com. Jour., 20th June. was passed, 16th Feb. 1702, at the same 1 Journals, 8th May; Parl. Hist. v. time with others directed against Cole1250; Ralph, 947. This historian, who pepper, That it is the undoubted right generally affects to take the popular side, of the people of England to petition or inveighs against this petition, because the address the king, for the calling, sitting, tories had a majority in the commons. or dissolving of parliaments, or for the reHis partiality, arising out of a dislike to dressing of grievances. Parl. Hist. v. the king, is very manifest throughout the 1340. -1845.] second volume. He is forced to admit 2

History of the Kentish Petition, Soafterwards that the house disgusted the mers’ Tracts, xi. 242; Legion’s Paper, people by their votes on this occasion. id. 264; Vindication of the Rights of P. 976. [ Colepepper having escaped the Commons (either by Harley or sir from the custody of the sergeant, the Humphrey Mackworth), id. 276. This house of commons addressed the king to contains in many respects constitutional cause him to be apprehended; upon principles; but the author holds very which he surrendered himself. In the strong language about the right of petinext parliament, which met Dec. 30, tioning. After quoting the statute of 1701, he had been a candidate for Maid-Charles II. against tumults on pretence stone. and, another being returned, pe-of presenting petitions, he says, ” By titioned the house, who, having resolved this statute it may be observed, that not first in favor of the opposite party, only the number of persons is restrained, proceeded to vote Colepepper guilty of but the occasion also for which they may “scandalous, villanous, and groundless petition; which is for the alteration of reflections upon the late house of com-matters established in church or state, for mons;” and, having committed him to want whereof some inconvenience may Newgate, directed the attorney-general arise to that county from which the petito prosecute him for the said offences. tion shall be brought. For it is plain by Parl.

Hist. v. 1339. Ralph, 1015. Cole-the express words and meaning of that

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ANNE, GEO. I. & H. AYLESBURY ELECTION. 263 A very few years after this high exercise of authority, it was called forth in another case, still more remarkable and even less warrantable. The house of lordsabout commons had an undoubted right of determining Aylesbury all disputed returns to the writ of election, and consequently of judging upon the right of every vote. But statute that the grievance or matter of 1640, nor one addressed to the convention, the petition must arise in the same county in 1689, from the inhabitants of London as the petition itself. They may indeed and Westminster, pressing their declarapetition the king for a parliament to re-tion of William and Mary; both in times dress their grievances; and they may pe-too critical to furnish regular precedents. tition that parliament to make one law [It may be mentioned, however, that, a that is advantageous, and repeal another few months after the Revolution, the city that is prejudicial to the trade or interest of London added to a petition to have of that county; but they have no power their ancient right of choosing their sherby this statute, nor by the constitution iffs restored to them, a prayer that the of the English government, to direct the king might be enabled to make use of parliament in the general proceedings the service of all his protestant subjects, concerning the whole kingdom; for the that is, that the test might be abrogated. law declares that a general consultation Parl. Hist. v. 359. It was carried by 174 of all the wise representatives of parliato 147 that this petition should be read. ment is more for the safety of England -1845.] But as the popular principles than the hasty advice of a number of pe-of government grew more established, the titioners of a private county, of a grand right of petitioning on general grounn jury, or of a few justices of the peace, seems to have been better recognized; who seldom have a true state of the case and instances may be found, during the represented to them.” P. 313.

administration of sir Robert Walpole, These are certainly what must appear though still by no means frequent. Parl. in the present day very strange limita-Hist. xii. 119. [In the South Sea crisis, tions of the subject’s right to petition 1721, many petitions were presented, prayeither house of parliament. But it is ing for justice on the directors. Parl. really true that such a right was not Hist. vii. 763.-1845.] The city of Longenerally recognized. nor frequently ex-don presented a petition against the bill ercised, in so large an extent as is now for naturalization of the Jews, in 1753, held unquestiontble. We may search as being derogatory to the Christian religwhole volumes of the Journals, while the ion as well as detrimental to trade. Id. most animating topics were in discussion, xiv 1417. It caused however some aniwithout finding a single instance of such madversion; for Mr. Northey, in the an interposition of the constituent with debate next session on the proposal to the representative body. In this partic-repeal this bill, alluding to this very ular case of the Kentish petition, the petition, and to the comments Mr. Pelwords in the resolution, that it tended to ham made on it, as’” so like the famous destroy the constitution of parliament Kentish petition, that if they had been and subvert the established government, treated in the same manner it would have could be founded on no pretence but its been what they deserved,” observes in unusual interference with the counsels reply, that the “right of petitioning of the legislature. With this exception, either the king or the parliament in a I am not aware (stating this, however, decent and submissive manner, and withwith some diffidence) of any merely polit out any riotous appearance, against anyical petition before the septennial bill in thing they think may affect their religion 1717, against which several were presented and liberties, will never, I hope, be taken from corporate towns; one of which was from the subject.”’ Id. xv.

149; see also rejected on account of language that the 376. And it is very remarkable that nothouse thought indecent; and as to these withstanding the violent clamour excited it may be observed, that towns returning by that unfortunate statute, no petitions members to parliament had a particular for its repeal are to be found in the concern in the measure before the house. Journals. They are equally silent with They relate, however, no doubt, to gener-regard to the marriage act, another topic al policy, and seem to establish a of popular obloquy. Some petitions appopular principle which stood on little pear to have been presented against the authority. I do not of course include bill for naturalization of foreign protesthe petitions to the long parliament in tants; but probably on the ground of its

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264 DISPUTE WITH LORDS ABOUT CHAP. XVI. as the house could not pretend that it had given this right, or that it was not, like any other franchise, vested in the possessor by a legal title, no pretext of reason or analogy could be set up, for denying that it might also come, in an indirect manner at least, before a court of justice, and be judged by the common principles of law. One Ashby, however, a burgess of Aylesbury, having sued the returning officer for refusing his vote; and three judges of the king’s bench, against the opinion of chief-justice Holt, having determined for different reasons that it did not lie, a writ of error was brought in the house of lords, when the judgment was reversed. The house of commons took this up indignantly, and passed various resolutions, asserting their exclusive right to take cognizance of all matters relating to the election of their members. The lords repelled these by contrary resolutions: That by the known laws of this kingdom, every person having a right to give his vote, and being wilfully denied by the officer who ought to receive it, may maintain an action against such officer to recover damage for the injury; That the contrary assertion is destructive of the property of the subject, and tends to encourage corruption and partiality in returning officers; that the declaring persons guilty of breach of privilege for prosecuting such actions, or for soliciting and pleading in them, is a manifest assuming a power to control the law, and hinder the course of justice, and subject the property of Englishmen to the arbitrary votes of the house of commons. They ordered a copy of these resolutions to be sent to all the sheriffs, and to be communicated by them to all the boroughs in their respective counties. A prorogation soon afterwards followed, but served only injurious effect on the parties themselves. the debate of political questions, as preThe great multiplication of petitions on paratory to such addresses or petitions, matters wholly unconnected with particis still less according to the practice and ular interests cannot, I believe, be traced precedents of our ancestors; nor does it higher than those for the abolition of the appear that the sheriffs or other magisslave trade in 1787; though a few were trates are more invested with a right of presented for reform about the end of convening or presiding in assemblies of the American war, which would un-this nature than any other persons; doubtedly have been rejected with indig-though, within the bounds of the public nation in any earlier stage of our peace, itwould not perhaps be contended constitution. It may be remarked also that they have ever been unlawful. But that petitions against bills imposing that their origin can be distinctly traced duties are not received, probably on the higher than the year 1769, I am not preprinciple that they are intended for the pared to assert. It will of course be general interests, though affecting the understood, that this note is merely hisparties who thus complain of them. Hat-torical, and without reference to the sell, iii. 200. expediency of that change in our constiThe convocation of public meetings for tutional theory which it illustrates.

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ANNE, GEO. I. & II. AYLESBURY ELECTION. 265 to give breathing time to the exasperated parties; for it must be observed, that though a sense of dignity and privilege no doubt swelled the majorities in each house, the question was very much involved in the general whig and tory course of politics. But Ashby, during the recess, having proceeded to execution on his judgment, and some other actions having been brought against the returning officer of Aylesbury, the commons again took it up, and committed the parties to Newgate. They moved the court of king’s bench for a habeas corpus; upon the return to which, the judges, except Holt, thought themselves not warranted to set them at liberty against the commitment of the house.l It was threatened to bring this by writ of error before the lords; and in the disposition of that assembly, it seems probable that they would have inflicted a severe wound on the privileges of the lower house, which must in all probability have turned out a sort of suicide upon their own. But the commons interposed by resolving to commit to prison the counsel and agents concerned in prosecuting the habeas corpus, and by addressing the queen not to grant a writ of error.

The queen properly answered, that as this matter, relating to the course of judicial proceedings, was of the highest consequence, she thought it necessary to weigh very carefully what she should do. The lords came to some important resolutions: That neither house of parliament hath any power by any vote or declaration to create to themselves any new privilege that is not warranted by the known laws and customs of parliament; That the house of commons, in committing to Newgate certain persons for prosecuting an action at law, upon pretence that their so doing was contrary to a declaration, a contempt of the jurisdiction, and a breach of the privileges of that house, have assumed to themselves alone a legislative power, by pretending to attribute the force of law to their declaration, have claimed a jurisdiction not warranted by the constitution, and have assumed a new privilege, to which they can show no title by the law and custom of parliament; and have thereby, as far as in them lies, subjected the rights of Englishmen, and the freedom of their persons, to the arbitrary votes of the house of commons; That every Englishman, who is imprisoned by any authority whatsoever, has an undoubted right to a writ 1 State Trials, xiv. 849.

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266 PROCEEDINGS AGAINST CHAP. XVI of habeas corpus, in order to obtain his liberty by the due course of law; That for the house of commons to punish any person for assisting a prisoner to procure such a writ is an attempt of dangerous consequence, and a breach of the statutes provided for the liberty of the subject; That a writ of error is not of grace but of right, and ought not to be denied to the subject when duly applied for, though at the request of either house of parliament. These vigorous resolutions produced a conference between the houses, which was managed with more temper than might have been expected from the tone taken on both sides.

But, neither of them receding in the slightest degree, the lords addressed the queen, requesting her to issue the writs of error demanded upon the refusal of the king’s bench to discharge the parties committed by the house of commons. The queen answered the same day that she should have granted the writs of error desired by them, but finding an absolute necessity of putting an immediate end to the session, she was sensible there could have been no further proceeding upon them. The meaning of this could only be, that by a prorogation all commitments by order of the lower house of parliament are determined, so that the parties could stand in no need of a habeas corpus. But a great constitutional question was thus wholly eluded.1 We may reckon the proceedings against Mr. Alexander i Murray, in 1751, among the instances wherein angainst the house of commons has been hurried by passion Mr. Murray to an undue violence. This gentleman had been in 1751. n active in a contested Westminster election, on an antiministerial and perhaps Jacobite interest. In the course of an inquiry before the house, founded on a petition against the return, the high-bailiff named Mr. Murray as having insulted him in the execution of his duty. The house resolved to hear Murray by counsel in his defence, and the high-bailiff also by counsel in support of the charge, and ordered the former to give bail for his appearance from time to time. These, especially the last, were innovations on the practice of parliament, and were justly opposed by the more cool-headed men. After hearing witnesses on both sides, it was resolved that Murray should be committed to Newgate, and should receive this sentence upon his knees. This com1 Parl. Hist. vi.

225 et post; State Trials, xiv. 695 et post.

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AC-E, Guo. I & II. MR. ALEX. MURRAY. 267 mand he steadily refused to obey, and thus drew on himself a storm of wrath at such insolence and audacity.

But the times were no more, when the commons could inflict whippings and pillories on the refractory; and they were forced to content themselves with ordering that no person should be admitted to him in prison, which, on account of his ill health, they soon afterwards relaxed. The public voice is never favorable to such arbitrary exertions of mere power: at the expiration of the session, Mr. Murray, thus grown from an intriguing Jacobite into a confessor of popular liberty, was attended home by a sort of triumphal procession amidst the applause of the people. In the next session he was again committed on the same charge; a proceeding extremely violent and arbitrary.1 It has been always deemed a most important and essential privilege of the houses of parliament, that they may punish in this summary manner by commitment all those who disobey their orders to attend as witnesses, or for any purposes of their constitutional duties.

No inquiry could go forward before the house at large or its committees, without this power to enforce obedience; especially when the information is to be extracted from public officers against the secret wishes of the court. It is equally necessary (or rather more so, since evidence not being on oath in the lower house, there can be no punishment in the course of law), that the contumacy or prevarication of witnesses should incur a similar penalty. No man would seek to take away this authority from parliament, unless he is either very ignorant of what has occurred in other times and his own, or is a slave in the fetters of some general theory. But far less can be advanced for several exertions of power on record in the Journals, which under the Commitname of privilege must be reckoned by impartial ments for men irregularities and encroachments, capable enceudn only at some periods of a kind of apology from with the the unsettled state of the constitution. The com-house. mons began, in the famous or infamous case of Floyd, to arrogate a power of animadverting upon political offences, which was then wrested from them by the upper house. But in the first parliament of Charles I. they committed I Parl.

Hist. xiv. 888 et post, 1063; Walpole’s Memoirs of the last Ten Years of George II., i. 15 et post

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268 ABUSES OF PRIVILEGE - CHAP. XVI. Montagu (afterwards the noted semi-popish bishop) to the sergeant on account of a published book containing doctrines they did not approve.1 For this was evidently the main point, though he was also charged with reviling two persons who had petitioned the house, which bore a distant resemblance to a contempt. In the long parliament, even from its commencement, every boundary was swept away; it was sufficient to have displeased the majority by act or word; but no precedents can be derived from a crisis of force struggling against force. If we descend to the reign of William III., it will be easy to discover instances of commitments, laudable in their purpose, but of such doubtful legality and dangerous consequence, that no regard to the motive should induce us to justify the precedent. Graham and Burton, the solicitors of the treasury in all the worst state prosecutions under Charles and James, and Jenner, a baron of the exchequer, were committed to the Tower by the council immediately after the king’s proclamation, with an intention of proceeding criminally against them. Some months afterwards, the suspension of the habeas corpus, which had taken place by bill, having ceased, they moved the king’s bench to admit them to bail; but the house of commons took this up, and, after a report of a committee as to precedents, put them in custody of the sergeantat-arms.2 On complaints of abuses in victualling the navy, the commissioners of that department were sent for in the sergeant’s custody, and only released on bail ten days afterwards.3 But, without minutely considering the questionable instances of privilege that we may regret to find, I will select one wherein the house of commons appear to have gone far beyond either the reasonable or customary limits of privilege, and that with very little pretext of public necessity. In the reign of George I., a newspaper called Mist’s Journal was notorious as the organ of the Jacobite faction.

A passage full of the most impudent longings for the pretender’s restoration having been laid before the house, it was resolved, May 28, 1721, “That the said paper is a false, malicious, scandalous, infamous, and traitorous libel, tending to alienate the affections of his majesty’s subjects, and to excite the people to sedition and rebellion, with an intention to subvert the present happy establish1 Journals, vii. 9th July, 1725. 8 Id. 5th Dec. 2 lommons’ Journals, 25th Oct. 1689.

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ANNE, GEO. I & II. MIST’S JOURNAL. 269 ment, and to introduce popery and arbitrary power.” They went on after this resolution to commit the printer Mist to Newgate, and to address the king that the authors and publishers of the libel might be prosecuted.’ It is to be observed that no violation of privilege either was, or indeed could be, alleged as the ground of this commitment; which seems to imply that the house conceived itself to be invested with a general power, at least in all political misdemeanors. I have not observed any case more recent than this of Mist, wherein any one has been committed on a charge which could not possibly be interpreted as a contempt of the house, or a breach of its privilege. It became, however, the practice, without previously addressing the king, to direct a prosecution by the attorney-general for offences of a public nature, which the commons had learned in the course of any inquiry, or which had been formally laid before them.2 This seems to have been introduced about the beginning of the reign of Anne, and is undoubtedly a far more constitutional course than that of arbitrary punishment by over-straining their privilege. In some instances, libels have been publicly burned by the order of one or other house of parliament. I have principally adverted to the powers exerted by the lower house of parliament, in punishing those guilty of violating their privileges. It will, of course, be understood that the lords are at least equal in authority. In some respects indeed they have gone beyond. I do not mean that they would be supposed at present to have cognizance of any offence whatever, upon which the commons could not animadvert. Notwithstanding what they claimed in the case of Floyd, the subsequent denial by the commons, and abandonment by themselves, of any original jurisdiction, must stand in the way of their assuming such authority over misdemeanors, more extensively at least than the commons, as has been shown, have in some instances exercised it. But, while the latter have, with very few exceptions, and none since the Restoration, contented themselves with commitment during the session, the lords have sometimes imposed fines, and on some occasions in the reign of George II., as well as later, have adjudged parties to imprisonment for a certain time. In one instance, so late as that reign, they sentenced a man to 1 Parl. Hist. vii. 803. 2 Lords’ Journals, 10th Jan. 1702: Parl. list.

vi. 21.

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270 PRIVILEGES NOT CONTROLLABLE CHAP. XVI. the pillory; and this had been done several times before. The judgments, however, of earlier ages, give far less credit to the jurisdiction than they take from it. Besides the evermemorable case of Floyd, one John Blount, about the same time (27th Nov. 1621), was sentenced by the lords to imprisonment and hard labor in Bridewell during life.1 It may surprise those who have heard of the happy balance of the English constitution, of the responsibility of every man to the law, and of the security of the subject from all unPrivileges of limited power, especially as to personal fieedom, the house not that this power of awarding punishment at discrecontrollable by courts of tion of the houses of parliament is generally relaw. puted to be universal and uncontrollable. This indeed was by no means received at the time when the most violent usurpations under the name of privilege were first made; the power was questioned by the royalist party who became its victims, and among others, by the gallant Welshman, judge Jenkins, whom the long parliament had shut up in the Tower. But it has been several times brought into discussion before the ordinary tribunals; and the result has been, that if the power of parliament is not unlimited in right, there is at least no remedy provided against its excesses. The house of lords in 1677
committed to the Tower four peers, among whom was the earl of Shaftesbury, for a high contempt; that is, for calling in question, during a debate, the legal continuance of parliament after a prorogation of more than twelve months. Shaftesbury moved the court of king’s bench to release him upon a writ of habeas corpus. But the judges were unanimously of opinion that they had no jurisdiction to inquire into a commitment by the lords of one of their body, or to discharge the party during the session, even though there might be, as appears to have been the case, such technical informality on the face of the commitment, as would be sufficient in an ordinary case to set it aside.2 Lord Shaftesbury was at this time in vehement opposition to the court. Without insinuating that this had any effect 1 Hargrave’s Juridical Arguments, vol. government could not be prosecuted in i. p. 1, &c. [In 1677, the lords having parliament. Nothing, however, was done committed one Dr. Cary, for sending to by the house; so that the lords gained a the press a libel, asserting the illegality victory. Parl. Hist. iv. 837. -1845.] of the late prorogation, it was taken up 2 State Trials, vi. 1369; 1 Modern ewarmly by the opposition commoners, ports, 159. on the ground that offences against the

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ANNE, GEO. I. & II. BY COURTS OF LAW. 271 upon the judges, it is certain that a few years afterwards they were less inclined to magnify the privileges of parliament. Some who had been committed, very wantonly and oppressively by the commons in 1680, under the name of abhorrers, brought actions for false imprisonment against Topham, the sergeantat-arms. In one of these he put in what is called a plea to the jurisdiction, denying the competence of the court of king’s bench, inasmuch as the alleged trespass had been done by order of the knights, citizens, and burgesses of parliament. But the judges overruled this plea, and ordered him to plead in bar to the action. We do not find that Topham complied with this; at least judgments appear to have passed against him in these actions.1 The commons, after the Revolution, entered on the subject, and summoned two of the late judges, Pemberton and Jones, to their bar. Pemberton answered that he remembered little of the case; but if the defendant should plead that he did arrest the plaintiff by order of the house, and should plead that to the jurisdiction of the king’s bench, he thought, with submission, he could satisfy the house that such a plea ought to be overruled, and that he took the law to be so very clearly. The house pressed for his reasons, which he rather declined to give. But on a subsequent day he fully admitted that the order of the house was sufficient to take any one into custody, but that it ought to be pleaded in bar, and not to the jurisdiction, which would be of no detriment to the party, nor affect his substantial defence. It did not appear, however, that he had given any intimation from the bench of so favorable a leaning towards the rights of parliament; and his present language might not uncharitably be ascribed to the change of times. The house resolved that the orders and proceedings of this house, being pleaded to the jurisdiction of the court of king’s bench, ought not to be overruled; that the judges had been guilty of a breach of privilege, and should be taken into custody.2 I have already mentioned that, in the course of the controversy between the two houses on the case of Ashby and White, the commons had sent some persons to Newgate for suing the returning officer of Aylesbury in defiance of their resolutions; and that, on their application to the king’s bench 1 State Trials, xii. 822; T. Jones, Re-2 Journals, 10th, 12th, 19th July, ports, 208. 1689.

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272 PRIVILEGES NOT CONTROLLABLE CuAP. XVI. to be discharged on their habeas corpus, the majority of the judges had refused it. Three judges, Powis, Gould, and Powell, held that the courts of Westminster Hall could have no power to judge of the commitments of the houses of parliament; that they had no means of knowing what were the privileges of the commons, and consequently could not know their boundaries; that the law and custom of parliament stood on its own basis, and was not to be decided by the general rules of law; that no one had ever been discharged from such a commitment, which was an argument that it could not be done. Holt, the chief-justice, on the other hand, maintained that no privilege of parliament could destroy a man’s right, such as that of bringing an action for a civil injury; that neither house of parliament could separately dispose of the liberty and property of the people, which could only be done by the whole legislature; that the judges were bound to take notice of the customs of parliament, because they are part of the law of the land, and might as well be learned as any other part of the law. “It is the law,” he said, “that gives the queen her prerogative; it is the law gives jurisdiction to the house of lords, as it is the law limits the jurisdiction of the house of commons.” The eight other judges having been consulted, though not judicially, are stated to have gone along with the majority of the court, in holding that a commitment by either house of parliament was not cognizable at law. But from some of the resolutions of the lords on this occasion which I have quoted above, it may seem probable that, if a writ of error had been ever heard before them, they would have leaned to the doctrine of Holt, unless indeed withheld by the reflection that a similar principle might easily be extended to themselves.1 It does not appear that any commitment for breach of privilege was disputed until the year 1751, when Mr. Alexander Murray, of whom mention has been made, caused himself to be brought before the court of king’s bench on a habeas corpus. But the judges were unanimous in refusing to discharge him. ” The house of commons,” said Mr. justice Wright, “is a high court, and it is agreed on all hands that they have power to judge of their own privileges; it need not appear to us what the contempt is for; if it did appear, we could not judge thereof.”-” This court,” 1 State Trials, xiv. 849.

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ANNE, GEO. I. & II. BY COURTS OF LAW. 273 said Mr. justice Denison, “has no jurisdiction in the present case. We granted the habeas corpus, not knowing what the commitment was; but now it appears to be for a contempt of the privileges of the house of commons. What the privileges of either house are we do not know; nor need they tell us what the contempt was, because we cannot judge of it; for I must call this court inferior to the commons with respect to judging of their privileges and contempts against them.” Mr. justice Foster agreed with the two others, that the house could commit for a contempt, which, he said, Holt had never denied in such a case as this before them.1 It would be unnecessary to produce later cases which have occurred since the reign of George II., and elicited still stronger expressions from the judges of their incapacity to take cognizance of what may be done by the houses of parliament.

Notwithstanding such imposing authorities, there have not been wanting some who have thought that the Danger of doctrine of uncontrollable privilege is both emi-stretching nently dangerous in a free country, and repugnantths too far to the analogy of our constitution. The manly language of lord Holt has seemed to rest on better principles of public utility, and even perhaps of positive law.2 It is not, however, to be inferred that the right of either house of parliament to commit persons, even not of their own body, to prison, for contempts or breaches of privilege, ought to be called in question. In some cases this authority is as beneficial, and even indispensable, as it is ancient and established.

Nor do I by any means pretend that if the warrant of commitment merely recites the party to have been guilty of a contempt or breach of privilege, the truth of such allegation could be examined upon a return to a writ of 1 State Trials, viii. 30. lishing of gross reflections upon the 2 This is very elaborately and dispas-whole.parliament or upon either house, sionately argued by Mr. Hargrave in his though perhaps originally questionable, Juridical Arguments, above cited: also seems now of too long a standing and of vol. ii. p. 183.‘“I understand it,” he too much frequency in practice to be says, ” to be clearly part of the law and well couuteracted.” But after mentioncustom of parliament that each house ing the opinions of the judges in Crosby’s of parliament may inquire into and im-case, Mr. H. observes: ” I am myself far prison for breaches of privilege.” But from being convinced that commitment this he thinks to be limited by law; and for contempts by a house of parliament, after allowing it clearly in cases of ob-or by the highest court of judicature in struction, arrest, assault, &c., on mem-Westminster Hall, either ought to be. or bers, admits also that “the judicative are: thus wholly privileged from all expower as to writing, speaking, or pub-ammation and appeal.”

VOL. III. 18

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274 UNCONTROLLABLE PRIVILEGE CHAP. XVI. habeas corpus, any more than in an ordinary case of felony. Whatever injustice may thus be done cannot have redress by any legal means; because the house of commons (or the lords, as it may be) are the fit judges of the fact, and must be presumed to have determined it according to right. But it is a more doubtful question, whether, if they should pronounce an offence to be a breach of privilege, as in the case of the Aylesbury men, which a court of justice should perceive to be clearly none, or if they should commit a man on a charge of misdemeanor, and for no breach of privilege at all, as in the case of Mist the printer, such excesses of’ jurisdiction might not legally be restrained by the judges. If the resolutions of the lords in the business of Ashby and White are constitutional and true, neither house of parliament can create to itself any new privilege; a proposition surely so consonant to the rules of English law, which require prescription or statute as the basis for every right, that few will dispute it; and it must be still less lawful to exercise a jurisdiction over misdemeanors, by committing a party who would regularly be only held to bail on such a charge. Of this I am very certain, that if Mist, in the year 1721, had applied for his discharge on a habeas corpus, it would have been far more difficult to have opposed it on the score of precedent or of constitutional right, than it was for the attorney-general of Charles I., nearly one hundred years before, to resist the famous arguments of Selden and Littleton, in the case of the Buckinghamshire gentlemen committed by the council. If a few scattered acts of power can make such precedents as a court of justice must take as its rule, I am sure the decision, neither in this case nor in that of ship-money, was so unconstitutional as we usually suppose: it was by dwelling on all authorities in favor of liberty, and by setting aside those which made against it, that our ancestors overthrew the claims of unbounded prerogative. Nor is this parallel less striking when we look at the tone of implicit obedience, respect, and confidence with which the judges of the eighteenth century have spoken of the houses of parliament, as if their sphere were too low for the cognizance of such a transcendent authority.’ The same I Mr.

justice Gould in Crosby’s case, (Wilkes’s case, 2 Wilson, 151), deter. as reported by Wilson, observes: ” It is mine upon the privilege of parliament in true this court did, in the instance the case of a libel; but then that privialluded to by the counsel at the bar lege was proniulged and known; it ex

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ANNE, GEO. I. & II. A DANGEROUS DOCTRINE. 275 language, almost to the words, was heard from the lips of the Hydes and Berkeleys in the preceding age, in reference to the king and to the privy council. But as, when the spirit of the government was almost wholly monarchical, so since it has turned chiefly to an aristocracy, the courts of justice have been swayed towards the predominant influence; not, in general, by any undue motives, but because it is natural for them to support power, to shun offence, and to shelter themselves behind precedent. They have also sometimes had in view the analogy of parliamentary commitments to their own power of attachment for contempt, which they hold to be equally uncontrollable, a doctrine by no means so dangerous to the subject’s liberty, but liable also to no trifling objections.1 The consequences of this utter irresponsibility in each of the two houses will appear still more serious when we advert to the unlimited power of punishment which it draws with it. The commons indeed do not pretend to imprison beyond the session; but the lords have imposed fines and definite imprisonment, and attempts to resist these have been unsuccessful.2 If the matter is to rest upon precedent, or upon what overrides precedent itself, the absolute failure of jurisdiction in the ordinary courts, there seems nothing (decency and discretion excepted) to prevent their repeating the sentences of James I.‘s reign, whipping, branding, hard labor for life. Nay, they might order the usher of the black rod to take a mal from their bar, and hang him up in the lobby. Such things would not be done, and, being done, would not be endured; but it is much that any sworn ministers of the law should, even by indefinite language, have countenanced the legal possibility of tyrannous power in isted in records and law-books, and was as it is sometimes stated, and it has allowed by parliament itself. But even been sometimes practised.” Hargrave, in that case we now know that we were ii.

213. mistaken;for the house of commons have “The principle upon which attachsince determined, that privilege does not ments issue for libels on courts is of a extend to matters of libel.: It appears, more enlarged and important nature: it therefore, that Mr. justice Gould thought is to keep a blaze of glory around them, a declaration of the house of commons and to deter people from attempting to was better authority than’a decision of render them contemptible in the eyes of the court of common pleas, as to a privi-the people.” Wilmot’s Opinions and lege which, as he says, existed in records Judgments, p. 270. Yet the king, who and law-books. seems as much entitled to this blaze of 1 ” I am far from subscribing to all the glory as his judges, is driven to the verlatitude of the doctrine of attachments diet of a jury before the most libellous for contempts of the king’s courts of insult on him can be punished. Westminster, especially the king’s bench, 2 Hargrave, ubi supra.

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276 UNCONTROLLABLE PRIVILEGE. CHAP. XVI England. The temper of government itself, in modern times, has generally been mild; and this is probably the best ground of confidence in the discretion of parliament; but popular, that is, numerous bodies, are always prone to excess, both from the reciprocal influences of their passions, and the consciousness of irresponsibility, for which reasons a democracy, that is the absolute government of the majority, is in general the most tyrannical of any.

Public opinion, it is true, in this country, imposes a considerable restraint; yet this check is somewhat less powerful in that branch of the legislature which has gone the farthest in chastising breaches of privilege. I would not be understood, however, to point at any more recent discussions on this subject; were it not, indeed, beyond the limits prescribed to me, it might be shown that the house of commons, in asserting its jurisdiction, has receded from much of the arbitrary power which it once arrogated, and which some have been disposed to bestow upon it.1 1 [This important topic of parliamen-much as tolerably answered, that ” The tary privilege has been fully discussed, question now is, whether each house of since the first publication of the present parliament has exclusive authority to volumes, in the well-known proceedings decide upon the existence and extent of to which the action Stockdale v. Han-its own privileges, to pronounce at its sard gave rise.

In trying this case. lord pleasure upon the breach of those priviDenman told the jury, that the order of leges, to bind by its declaration of law all the house of commons was not a justie-the queen’s subjects, between whom in a cation for any man to publish a private court of justice a question as to privilege libel. In consequence of this decision, may arise, and to punish at its discretion the house of commons resolved, May 30, all persons, suitors, attorneys, counsel, 1837, That, by the law and privilege of and judges, who may be concerned in parliament, this house has the sole and bringing those privileges into discussion exclusive jurisdiction to determine upon in a court of justice directly or indithe existence and extent of its privileges, rectly.” Pemberton’s Letter to Lord and that the institution or prosecution of Langdale, p. 4. - 1837.

any action, suit, or other proceeding, for In the debates which ensued in the the purpose of bringing them into dis-house of commons, those who contended cussion or decision, before any court or for unlimited privilege fell under two tribunal elsewhere than in parliament, classes: such as availed themselves of is a high breach of such privilege. and the opinions of the eleven judges who renders all parties concerned therein dissented from Holt, in Ashby v. White, amenable to its just displeasure, and to and of some later dicta; and such as, the punishment consequent thereon.

apparently indifferent to what courts of And, That for any court or tribunal to justice may have held, rested upon some assume to decide upon matters of privi-paramount sovereignty of the houses of lege inconsistent with the determination parliament, some uncontrollable right of of either house of parliament, is contrary exercising discretionary power for the to the law of parliament, and is a breach public good, analogous to what was once and contempt of the privileges of par-supposed to be vested in the crown. If liament. we but substitute prerogative of the Of these resolutions, which, as is ob-crown for privileges of parliament in vious, go far beyond what the particular the resolutions of 1837, we may ask case of Stockdale required, it has been whether, in the worst times of the well said. in an excellent pamphlet by Tudors and Stuarts, such a doctrine was Mr. Pemberton Leigh, which really ex-ever laid down in express terms by any hausts the subject, and was never so grave authority. With these there could

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INNE, GEO. I. & II. EXTENSION OF PENAL LAWS. 277 IV. It is commonly and justly said that civil liberty is not only consistent with, but in its terms implies, the restrictive limitations of natural liberty which are imposed by law. But, as these are not the less real limitations of liberty, it can hardly be maintained that the subject’s condition is not impaired by very numerous restraints upon his will, even without reference to their expediency. The price may be well paid, but it is still a price that it costs some sacrifice to pay. Our statutes have been growing in bulk and multiplicity with the regular session of parliament, and with the new system of government; all abounding with prohibitions and penalties, which every man is presumed to know, but which no man, the judges themselves included, can really know with much exactness. We literally walk amidst the snares and pitfalls of the law. The very doctrine of the more rigid casuists, that men are bound in conscience to observe all the laws of their country, has become impracticable through their complexity and inconvenience; and most of us are content to shift off their penalties in the mala prohibita with as little scruple as some feel in risking those of graver offences. But what more peculiarly belongs to the present subject is the systematic encroachment upon ancient constitutional principles, which has for a long time been made through new enactments, proceeding from the crown, chiefly in respect to the revenue.1 These may be traced indeed in the statutebe no argument; the others had certainly celebrated for any peculiar sympathy as much right to cite legal authorities in with the laws, the crown, and the constitheir favor as their opponents. tution. - 1845.] The commitment of the sheriffs of Lon-1

This effect of continual new statutes don, in 1840, for executing a writ of the is well pointed out in a speech ascribed to queen’s bench, is recent in our remem-sir William Wyndham, in 1734:-” The brance; as well as that the immediate learned gentleman spoke (he says) of the question was set at rest by a statute, 3 prerogative of the crown, and asked us if & 4 Vict. c. 9, which legalizes publica-it had lately been extended beyond the tions under the authority of either house bounds prescribed to it by law. Sir, I of parliament, leaving, by a special pro-will not say that there have been lately viso, their privileges as before. But the any attempts to extend it beyond the main dispute between arbitrary and bounds prescribed by law; but I will say limited power is by no means determined; that these bounds have been of late so and, while great confidence may be placed vastly enlarged that there seems to be no in the caution which commonly distin-great occasion for any such attempt. guishes the leaders of parties, there will What are the many penal laws made always be found many who, possessing within these forty years, but so many exindividually a small fraction of despotic tensions of the prerogative of the crown, power, will not abandon it on any prin-and as many diminutions of the liberty ciple of respecting public liberty. It is of the subject? And whatever the ne. observable, though easily to be accounted cessity was that brought us into the enfor, and conformable to what occurred in acting of such laws, it was a fatal necesthe long parliament, that, among the sity; it has greatly added to the power most strenuous assertors of unmeasured of the crown, and particular care ought privilege, are generally found many, not to be taken not to throw any more

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278 EXTENSION OF PENAL LAWS. CHAP. XVI book, at least as high as the Restoration, and really began in the arbitrary times of revolution which preceded it. They have, however, been gradually extended along with the public burdens, and as the severity of these has prompted fresh artifices of evasion. It would be curious, but not within the scope of this work, to analyze our immense fiscal law, and to trace the history of its innovations. These consist partly in taking away the cognizance of offences against the revenue from juries, whose partiality in such cases there was in truth much reason to apprehend, and vesting it either in commissioners of the revenue itself or in magistrates; partly in anomalous and somewhat arbitrary powers with regard to the collection; partly in deviations from the established rules of pleading and evidence, by throwing on the accused party in fiscal causes the burden of proving his innocence, or by superseding the necessity of rigorous proof as to matters wherein it is ordinarily required; and partly in shielding the officers of the crown, as far as possible, frofn their responsibility for illegal actions, by permitting special circumstances of justification to be given in evidence without being pleaded, or by throwing impediments of various kinds in the way of the prosecutor, or by subjecting him to unusual costs in the event of defeat. These restraints upon personal liberty, and, what is worse, Extension of these endeavors, as they seem, to prevent the fair penallaws. administration of justice between the crown and the subject, have in general, more especially in modern times, excited little regard as they have passed through the houses of parliament. A sad necessity has overruled the maxims of ancient law; nor is it my business to censure our fiscal code, but to point out that it is to be counted as a set-off against the advantages of the Revolution, and has in fact diminished the freedom and justice which we claim for our polity; and that its provisions have sometimes gone so far as to give alarm to not very susceptible minds, may be shown weight into that scale.” Parl. Hist. ix. tion made by a single magistrate, are 463. made guilty of a capital felony. I am by Among the modern statutes which have no means controverting the expediency strengthened the hands of the executive of this law; but, especially when corn power, we should mention the riot act, 1 bined with the prompt aid of a military Geo. I. stat. 2, c. 5, whereby all persons force, it is surely a compensation for tumultuously assembled to the disturb-much that may seem to have been ance of the public peace, and not dis-thrown into the popular scale. persing between one hour after proclama

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-XNE, GEO. I. & II. EXTENSION OF PENAL LAWS. 279 from a remarkable debate in the year 1737. A bill having been brought in by the ministers to prevent smuggling, which contained some unusual clauses, it was strongly opposed, among other peers, by lord chancellor Talbot himself, of course in the cabinet, and by lord Hardwicke, then chief-justice, a regularly-bred crown lawyer, and in his whole life disposed to hold very high the authority of government. They objected to a clause subjecting any three persons travelling with arms to the penalty of transportation, on proof by two witnesses that their intention was to assist in the clandestine landing or carrying away prohibited or uncustomed goods. We have in our laws,” said one of the opposing lords, ” no such thing as a crime by implication, nor can a malicious intention ever be proved by witnesses. Facts only are admitted to be proved, and from those facts the judge and jury are to determine with what intention they were committed; but no judge or jury can ever, by our laws, suppose, much less determine, that an action, in itself innocent or indifferent, was attended with a criminal and malicious intention. Another security for our liberties is, that no subject can be imprisoned unless some felonious and high crime be sworn against him. This, with respect to private men, is the very foundation-stone of all our liberties; and if we remove it, if we but knock off a corner, we may probably overturn the whole fabric. A third guard for our liberties is that right which every subject has, not only to provide himself with arms proper for his defence, but to accustom himself to the use of those arms, and to travel with them whenever he has a mind.”

But the clause in question, it was contended, was repugnant to all the maxims of free government. No presumption of a crime could be drawn from the mere wearing of arms -an act not only innocent, but highly commendable; and therefore the admitting of witnesses to prove that any of these men were armed in order to assist in smuggling, would be the admitting of witnesses to prove an intention which was inconsistent with the whole tenor of our laws.’ They objected to another provision, subjecting a party against whom information should be given that he intended to assist in smuggling, to imprisonment without bail, though the offence itself were in its nature bailable; to another which 1 9 Geo. II.

c. 35, sect. 10, 13. Parl. but probably the expressions are not quite Hist. ix. 1229. I quote this as 1 find it; correct, for the reasoning is not so.

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280 DIMINISHED PERSONAL AUTHORITY CHAP. XVI, made informations for assault upon officers of the revenue triable in any county of England; and to a yet more startling protection thrown round the same favored class, that the magistrates should be bound to admit them to bail on charges of killing or wounding any one in the execution of their duty. The bill itself was carried by no great majority; and the provisions subsist at this day, or perhaps have received a further extension. It will thus appear to every man who takes a comprehen-,ive view of our constitutional history, that the executive government, though shorn of its lustre, has not lost so much of its real efficacy by the consequences of the Revolution as is often supposed - at least that with a regular army to put down insurrection, and an influence sufficient to obtain fresh statutes of restriction, if such should ever be deemed necessary, it is not exposed, in the ordinary course of affairs, to any serious hazard. But we must here distinguish the executive government, using that word in its largest sense, from the crown itself, or the personal authority of the sovereign: this is a matter of rather delicate inquiry, but too material to be passed by. The real power of the prince, in the most despotic monarchy, must have its limits from nature, and bear some proDiminution portion to his courage, his activity, and his intelofthrsotylof lect. The tyrants of the East become puppets or the crown. slaves of their viziers, or it turns to a game of cunning, wherein the winner is he who shall succeed in tying the bowstring round the other’s neck. After some ages of feeble monarchs, the titular royalty is found wholly separated from the power of command, and glides on to posterity in its languid channel till some usurper or conqueror stops up the stream forever. In the civilized kingdoms of Europe, those very institutions which secure the permanence of royal families, and afford them a guarantee against manifest subjection to a minister, take generally out of the hands of the soverCauses of eign the practical government of his people. Unthis. less his capacities are above the level of ordinary kings, he must repose on the wisdom and diligence of the statesmen he employs, with the sacrifice, perhaps, of his own;prepossessions in policy, and against the bent of his personal affections. The power of a king of England is not to be,compared with an ideal absoluteness, but with that which could

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ANNE, GEO. I. & II. OF THE CROWN. 281 be enjoyed in the actual state of society by the same person in a less bounded monarchy. The descendants of William the Conqueror on the English throne, down to the end of the seventeenth century, have been a good deal above the average in those qualities which enable, or at least induce, kings to take on themselves a large share of the public administration, as will appear by comparing their line with that of the house of Capet, or perhaps most others during an equal period. Without going farther back, we know that Henry VII., Henry VIII., Elizabeth, the four kings of the house of Stuart, though not always with as much ability as diligence, were the mastermovers of their own policy, not very susceptible of advice, and always sufficiently acquainted with the details of government to act without it. This was eminently the case also with William III., who was truly his own minister, and much better fitted for that office than those who served him. The king, according to our constitution, is supposed to be present in council, and was in fact usually, or very frequently, present, so long as the council remained as a deliberative body for matters of domestic and foreign policy; but when a junto or cabinet came to supersede that ancient and responsible body, the king himself ceased to preside, and received their advice separately, according to their respective functions of treasurer, secretary, or chancellor, or that of the whole cabinet through one of its leading members. This change, however, was gradual; for cabinet councils were sometimes held in the presence of William and Anne, to which other councillors, not strictly of that select number, were occasionally summoned. But on the accession of the house of Ianover this personal superintendence of the sovereign necessarily came to an end. The fact is hardly credible that, George I. being incapable of speaking English, as sir Robert Walpole was of conlversing in French, the monarch and his minister held discourse with each other in Latin.1 It is impossible that, with so de fective a means of communication (for Walpole, though by no means an illiterate man, cannot be supposed to have 1 Coxe’s Walpole, i..

36.. Wal-pable that no great stress can be laid on pole’s Works, iv. 476.

The former, how-his testimony. But I believe that the ever, seems to rest on H. Walpole’s fact of George I. and his minister converbal communication, whose want of versing in Latin may be proved on other accuracy, or veracity, or both, is so pal. authority.

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282 PARTY CONNECTIONS. CHAP. XVI. spoken readily a language very little familiar in this country), George could have obtained much insight into his domestic affairs, or been much acquainted with the characters of his subjects. We know, in truth, that he nearly abandoned the consideration of both, and trusted his ministers with the entire management of this kingdom, content to employ its great name for the promotion of his electoral interests. This continued in a less degree to be the case with his son, who, though better acquainted with the language and circumstances of Great Britain, and more jealous of his prerogative, was conscious of his incapacity to determine on matters of domestic government, and reserved almost his whole attention for the politics of Germany. The broad distinctions of party contributed to weaken the Party real supremacy of the sovereign. It had been connections. usual before the Revolution, and in the two succeeding reigns, to select ministers individually at discretion; and, though some might hold themselves at liberty to decline office, it was by no means deemed a point of honor and fidelity to do so.

Hence men in the possession of high posts had no strong bond of union, and frequently took opposite sides on public measures of no light moment. The queen particularly was always loath to discard a servant on account of his vote in parliament - a conduct generous perhaps, but feeble, inconvenient, when carried to such excess, in our constitution, and in effect holding out a reward to ingratitude and treachery. But the whigs having come exclusively into office under the line of Hanover (which, as I have elsewhere observed, was inevitable), formed a sort of phalanx which the crown was not always able to break, and which never could have been broken, but for that internal force of repulsion by which personal cupidity and ambition are ever tending to separate the elements of factions. It became the point of honor among public men to fight uniformly under the same banner, though not perhaps for the same cause - if indeed there was any cause really fought for, but the advancement of a party. In this preference of certain denominations, or of certain leaders, to the real principles which ought to be the basis of political consistency, there was an evident deviation from the true standard of public virtue; but the ignominy attached to the dereliction of friends for the sake of emolument, though it was every day incurred,

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ANNE, GEO. I. & II. PARTY CONNLCTIONS.: 283 must have tended gradually to purify the general character of parliament. Meanwhile the crown lost all that party attachments gained-a truth indisputable on reflection, though, while the crown and the party in power act in the same direction, the relative efficiency of the two forces is not immediately estimated. It was seen, however, very manifestly in the year 1746, when, after long bickering between the Pelhams and lord Granville, the king’s favorite minister, the former, in conjunction with a majority of the cabinet, threw up their offices, and compelled the king, after an abortive effort at a new administration, to sacrifice his favorite, and replace those in power whom he could not exclude from it. The same took place in a later period of his reign, when, after many struggles, he submitted to the ascendency of Mlr. Pitt.1 It seems difficult for any king of England, however conscientiously observant of the lawful rights of his subjects, and of the limitations they impose on his prerogative, to rest 1 H. Walpole’s Memoirs of the last monarchy.” P. 5. This was written in Ten Years. Lord Waldegrave’s Me-1757. moirs. In this well-written little book, The real tories, those I mean who adthe character of George II., in reference hered to the principles expressed by that to his constitutional position, is thus name, thought the constitutional prerogdelicately drawn: ” He has more knowl-ative of the crown impaired by a conedge of foreign affairs than most of his spiracy of its servants. Their notions ministers, and has good general notions are expressed in some letters on the Engof the constitution, strength, and in-lish Nation, published about 1756, under terest of this countryv but. being past the name of Battista Angeloni, by Dr. thirty when the Hanover succession took Shebbeare, once a Jacobite, and still so bitplace, and having since experienced the ter an enemy of William III. and George violence of party, the injustice of pop-I. that he stood in the pillory, not long ular clamor, the corruption of parlia-afterwards, for a libel on those princes ments, and the selfish motives of pre- (aumong other things); on which Iorace tended patriots, it is not surprising that Walpole justly animadverts, as a stretch he should have contracted some preju-of the law by lord Mansfield destructive dices in favor of those governments where of all historical truth. Memoirs of the the royal authority is under less restraint. last Ten Years, ii. 828.

Shebbeare, howYet prudence has so far prevailed over ever. was afterwards pensioned, along these prejudices, that they have never with Johnson, by lord Bute, and, at the influenced his conduct. On the con-time when these letters were written, trary, many laws have been enacted in may possibly have been in the Leicesterfavor of public liberty: and in the course house interest. Certain it is, that tho of a long reign there has not been a single selfinterested cabal who belonged to that attempt to extend the prerogative of the little court endeavored too successlully crown beyond its proper limits. He has to persuade its chief and her son that as much personal bravery as any man, the crown was reduced to a state of va3though his political courage seems some-salage, from which it ought to be emanwhat problematical: however, it is a fault cipated; and the government of the on the right side; for had he always been duke of Newcastle, as strong in party as firm and undaunted in the closet as connection as it was contemptible in abil he showed himself at Oudenarde and ity and reputation, afforded them no bad Dettingen, he might not have proved argument. The consequences are well quite so good a king in this limited known, but do not enter into the plan of this work.

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284 PARTY CONNECTIONS. CHAP. XVI always very content with this practical condition of the monarchy. The choice of his councillors, the conduct of government, are intrusted, he will be told, by the constitution to his sole pleasure; yet both as to the one and the other he finds a perpetual disposition to restrain his exercise of power; and though it is easy to demonstrate that the public good is far better promoted by the virtual control of parliament and the nation over the whole executive government than by adhering to the letter of the constitution, it is not to be expected that the argument will be conclusive to a royal understanding.

Hence he may be tempted to play rather a petty game, and endeavor to regain, by intrigue and insincerity, that power of acting by his own will which he thinks unfairly wrested from him. A king of England, in the calculations of politics, is little more than one among the public men of the day -taller indeed, like Saul or Agamemnon, by the head and shoulders, and therefore with no slight advantages in the scramble, but not a match for the many unless he can bring some dexterity to second his strength, and make the best of the selfinterest and animosities of those with whom he has to deal; and of this there will generally be so much that in the long run he will be found to succeed in the greater part of his desires: thus George I. and George II., in whom the personal authority seems to have been at the lowest point it has ever reached, drew their ministers, not always willingly, into that course of continental politics which was supposed to serve the purposes of Hanover far better than of England. It is well known that the Walpoles and the Pelhams condemned in private this excessive predilection of their masters for their native country, which alone could endanger their English throne; yet after the two latter 1 Many proofs of this occur in the cor-these whig leaders were extremely disrespondence published by Mr. Coxe. gusted with the Germanism and conThus Horace Walpole, writing to his tinual absence of George I.; Id.

ii. 116, brother sir Robert, in 1739, says: ” King 297; though first Townshend, and afterWilliam had no other object but the wards Walpole, according to the necesliberties and balance of Europe; but, sity, or supposed necessity, which congood God! what is the case now? I will trols statesmen, (that is, the fear of tell you in confidence; little, low, par-losing their places, ) became in appeartial, electoral notions are able to stop or ance the passive instruments of royal confound the best-conducted project for pleasure. the public.” Memoirs of sir It. Walpole, It is now, however, known that George iii. 535. The Walpoles had, some years II. had been induced by Walpole to come before, disapproved the policy of lord into a scheme, by which Hanover, after Townshend on account of his favoring his decease, was to be separated from the king’s Hanoverian prejudices. Id. i. England. It stands on the indisputable 834. And, in the preceeding reign, both authority of speaker Onslow. ” A little

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ANNE, GEO. I. & II. PARTY CONNECTIONS. 285 brothers had inveighed against lord Granville, and driven him out of power for seconding the king’s pertinacity in continuing the war of 1743, they went on themselves in the same track for at least two years, to the imminent hazard of losing forever the Low Countries and Holland, if the French government, so indiscriminately charged with ambition, had not displayed extraordinary moderation at the treaty of Aix-la-Chapelle. The twelve years that ensued gave more abundant proofs of the submissiveness with which the schemes of George II. for the good of Hanover were received by his ministers, though not by his people; but the most striking instance of all is the abandonment by Mr. Pitt himself of all his former professions in pouring troops into Germany. I do not inquire whether a sense of national honor might not render some of these measures justifiable, though none of them were advantageous; but it is certain that the strong bent of the king’s partiality forced them on against the repugnance of most statesmen, as well as of the great majority in parliament and out of it. Comparatively, however, with the state of prerogative before the Revolution, we can hardly dispute that there has been a systematic diminution of the reigning prince’s control, which, though it may be compensated or concealed in ordinary times by the general influence of the executive administration, is of material importance in a constitutional light. Independently of other consequences which might be pointed out as probable or contingent, it affords a real security against endeavors by the crown to subvert or essentially impair the other parts of our government; for though a king may while before sir Robert Walpole’s fall, thus perhaps the opportunity was lost: (and as a popular act to save himself, for when will it come again? It was said he went very unwillingly out of his offi-that the prince at that juncture would ces and power,) he took me one day aside, have consented to it, if he could have and said,‘What will you say, speaker, had the credit and popularity of the if this hand of mine shall bring a mes-measure, and that some of his friends sage from the king to the house of cor-were to have moved it in parliament, but mons, declaring his consent to having that the design at St. James’s prevented any of his family, after his death, to be it. Notwithstanding all this, I have had made, by act of parliament, incapable of some thoughts that neither court ever inheriting and enjoying the crown, and really intended the thing itself; but that possessing the electoral dominions at the it came on and went off, by a jealousy of same time?’ My answer was, Sir, it each other in it, and that both were will be as a message from heaven.’ He equally pleased that it did so, from an replied,‘It will be done.’ But it was equal fondness (very natural) for their not done; and I have good reason to be-own native country.” Notes on Burnet. iieve, it would have been opposed, and re- (iv. 490. Oxf. edit.) This story has jected at that time, because it came from been told before, but not in such a him, and by the means of those who had manner as to preclude doubt of its aualways been most clamorous for it; and thenticity.

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286 INFLUENCE OF POLITICAL WRITINGS. CRHA. XVI. believe himself and his posterity to be interested in obtaining arbitrary power, it is far less likely that a minister should desire to do so. I mean arbitrary, not in relation to temporary or partial abridgments of the subject’s liberty, but to such projects as Charles I. and James II. attempted to execute. What indeed might be effected by a king, at once able, active, popular, and ambitious, should such ever unfortunately appear in this country, it is not easy to predict: certainly his reign would be dangerous, on one side or other, to the present balance of the constitution. But against this contingent evil, or the far more probable encroachments of ministers, which, though not going the full length of despotic power, might slowly undermine and contract the rights of the people, no positive statutes can be devised so effectual as the vigilance of the people themselves, and their increased means of knowing and estimating the measures of their government. The publication of regular newspapers, not merely denfluenceof signed for the communication of intelligence, but political for the discussion of political topics, may be rewritings. ferred to the latter part of the reign of Anne, when they obtained great circulation, and became the accredited organs of different factions.1 The tory ministers were annoyed at the vivacity of the press, both in periodical and other writings, which led to a stamp-duty, intended chiefly to diminish their number, and was nearly producing more pernicious restrictions, such as renewing the licensing-act, or compelling authors to acknowledge their names.2 These, however, did not take place, and the government more honorably coped with their adversaries in the same warfare; nor, with Swift and Bolingbroke on their side, could they require, except indeed through the badness of their cause, any aid from the arm of power.8 1 Upon examination of the valuable printed anything with his name, natuseries of newspapers in the British Mu-rally blames. It miscarried, probably seum, I find very little expression of on account of this provision. Parl.

lIist. political feelings, till 1710, after the trial vi. 1141. But the queen, on opening of Sacheverell, and change of ministry. the session, in April, 1713, recommended The Daily Courant and Postman then some new law to check the licentiousness begin to attack the Jacobites, and the of the press. Id. 1173. Nothing, howPost-boy the dissenters. But these news-ever, was done in consequence. papers were less important than the 3

Bolingbroke’s letter to the Examiner, periodical sheets, such as the Examiner in 1710, excited so much attention that and Medley, which were solely devoted it was answered by lord Cowper, then to party controversy.

chancellor, in a letter to the Tatler. 2 A bill was brought in for this pur-Somers Tracts, xiii. 75; where sir Walter pose in 1712, which Swift, in his History Scott justly observes, that the fact of of the Last Four Years, who never two such statesmen becoming the cor

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ANNE, GEO. I. & II. INFLUENCE OF POLITICAL WRITINGS. 287 In a single hour these two great masters of language were changed from advocates of the crown to tribunes of the people; both more distinguished as writers in this altered scene of their foltunes, and certainly among the first political combatants with the weapons of the press whom the world has ever known. Bolingbroke’s influence was of course greater in England; and, with all the signal faults of his public character, with all the factiousness which dictated most of his writings, and the indefinite declamation or shallow reasoning which they frequently display, they have merits not always sufficiently acknowledged. He seems first to have made the tories reject their old tenets of exalted prerogative and hereditary right, and scorn the highchurch theories which they had maintained under William and Anne. His Dissertation on Parties, and Letters on the History of England, are in fact written on whig principles (if I know what is meant by that name), in their general tendency; however a politician, who had always some particular end in view, may have fallen into several inconsistencies.1 The same character is due to the Craftsman, and to most of the temporary pamphlets directed against sir Robert Walpole. They teemed, it is true, with exaggerated declamations on the side of liberty; but that was the side they took; it was to generous prejudices they appealed, nor did they ever advert to the times before the Revolution but with contempt or abhorrence. Libels there were indeed of a different class, proceeding from the Jacobite school; but these obtained little regard; the Jacobites themselves, or such as affected to be so, having more frequently espoused that cause from a sense of dissatisfaction with the conduct of the reigning family than from much regard to the pretensions of the other. Upon the whole matter it must be evident to every person who is at all conversant with the publications of George II.‘s reign, with the poems, the novels, the essays, and almost all the literature of the time, that what are called the popular or liberal doctrines of government were decidedly prevalent. The supporters themselves of the Walpole and Pelham administrations, though professedly whigs, and tenacious of Revorespondents of periodical publications England, “is that supreme magistrate shows the influence they must have ac-who has a negative voice in the legislaquired over the public mind.

ture.” This was in 1731. Nothing can 1 [ ” A king of Great Britain,” he says be more unlike the original tone of toryin his seventh Letter on the History of ism. 1845.]

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288 PUBLICATION OF DEBATES. CHAP. XVI. lution principles, made complaints, both in parliament and in pamphlets, of the democratical spirit, the insubordination to authority, the tendency to republican sentiments, which they alleged to have gained ground among the people. It is certain that the tone of popular opinion gave some countenance to these assertions, though much exaggerated, in order to create alarm in the aristocratical classes and furnish arguments against redress of abuses. The two houses of parliament are supposed to deliberate Publication with closed doors. It is always competent for any of debates. one member to insist that strangers be excluded; not on any special ground, but by merely enforcing the standing order for that purpose. It has been several times resolved that it is a high breach of privilege to publish any speeches or proceedings of the commons;1 though they have since directed their own votes and resolutions to be printed. Many persons have been punished by commitment for this offence; and it is still highly irregular, in any debate, to allude to the reports in newspapers, except for the purpose of animadverting on the breach of privilege.2 Notwithstanding this pretended strictness, notices of the more interesting discussions were frequently made public; and entire speeches were sometimes circulated by those who had sought popularity in delivering them. After the accession of George I.

we find a pretty regular account of debates in an annual publication, Boyer’s Historical Register, which was continued to the year 1737. They were afterwards published monthly, and much more at length, in the London and the 1 [The first instance seems to be Dec. tion some years afterwards, 1738, the 27th, 1694, when it is resolved, that no resolution was repeated in nearly the news-letter writers do, in their letters or same words, but after a debate wherein, other papers which they disperse, pre-though no one undertook to defend the sume to intermeddle with the debates or practice, the danger of impairing the other proceedings of this house.

Jour-liberty of the press was more insisted nals.- 1845.] upon than would formerly have been 2 It was resolved, nem. con., Feb. 26th, usual; and sir Robert Walpole took 1729, That it is an indignity to, and a credit to himself, justly enough, for rebreach of the privilege of, this house, specting it more than his predecessors. for any person to presume to give, in Id. x. 800. Coxe’s Walpole, i. 572. Edwritten or printed newspapers, any ac-ward Cave, the well-known editor of the count or minutes of the debates, or other Gentleman’s Magazine, and the publisher proceedings of this house, or of any com-of another Magazine were brought to the mittee thereof; and that upon discovery bar, April 30th, 1747, for publishing the of the authors, &c., this house will pro-house’s debates; when the former denied ceed against the offenders with the ut-that he retained any person in pay to most severity. Parl. Hist. viii. 683. make the speeches, and after expressing There are former resolutions to the same his contrition was discharged on payeffect. The speaker having himself ment of fees. Id.

xiv. 67 brought the subject under considera

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ANNE, GEO. I. & II. MIDDLE CLASSES. 289 Gentleman’s Magazines; the latter, as is well known, improved by the pen of Johnson, yet not so as to lose by any means the leading scope of the arguments. It follows of course that the restriction upon the presence of strangers had been almost entirely dispensed with. A transparent veil was thrown over this innovation by disguising the names of the speakers, or more commonly by printing only initial and final letters. This ridiculous affectation of concealment was extended to many other words in political writings, and had not wholly ceased in the American war. It is almost impossible to overrate the value of this regular publication of proceedings in parliament, carried as it has been in our own time to nearly as great copiousness and accuracy as is probably attainable. It tends manifestly and powerfully to keep within bounds the supineness and negligence, the partiality and corruption, to which every parliament, either from the nature of its composition or the frailty of mankind, must more or less be liable. Perhaps the constitution would not have stood so long, or rather would have stood like an useless and untenanted mansion, if this unlawful means had not kept up a perpetual intercourse, a reciprocity of influence, between the parliament and the people. A stream of fresh air, boisterous perhaps sometimes as the winds of the north, yet as healthy and invigorating, flows in to renovate the stagnant atmosphere, and to prevent that malaria which selfinterest and oligarchical exclusiveness are always tending to generate. Nor has its importance been less perceptible in affording the means of vindicating the measures of government, and securing to them, when just and reasonable, the approbation of the majority among the middle ranks, whose weight in the scale has been gradually increasing during the last and present centuries. This augmentation of the democratical influence, using that term as applied to the commercial and industrious classes in contradistinction to the territorial aris-influence of tocracy, was the slow but certain effect of accu-trheiddle mulated wealth and diffused knowledge, acting, however, on the traditional notions of freedom and equality which had ever prevailed in the English people. The nation, exhausted by the long wars of William and: Anne, recovered strength in thirty years of peace that ensued; and in that period, especially under the prudent rule of Walpole, the seeds VOL. III. 19

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290 SALE OF SEATS IN PARLIAMENT. CHAP. XVI. of our commercial greatness were gradually ripened. It was evidently the most prosperous season that England had ever experienced; and the progression, though slow, being uniform, the reign perhaps of George II. might not disadvantageously be compared, for the real happiness of the community, with that more brilliant but uncertain and oscillatory condition which has ensued. A distinguished writer has observed that the laborer’s wages have never, at least for many ages, commanded so large a portion of subsistence as in this part of the eighteenth century.1 The public debt, though it excited alarms, from its magnitude, at which we are now accustomed to smile, and though too little care was taken for redeeming it, did not press very heavily on the nation, as the low rate of interest evinces, the government securities at three per cent. having generally stood above par. In the war of 1743, which from the selfish practice of relying wholly on loans did not much retard the immediate advance of the country, and still more after the peace of Aix-la-Chapelle, a striking increase of wealth becomes perceptible.2 This was shown in one circumstance directly affecting the character of the constitution. The smaller boroughs, which had been from the earliest time under the command of neighboring peers and gentlemen, or sometimes of the crown, were attempted by rich capitalists, with no other connection or recommendation than one which is generally sufficient.8 This appears to have been first observed in the general elections of 1747 and 1754;4 and though the prevalence of bribery is attested I Malthus, Principles of Political Econ- - 4 Tindal, apud Parl. Hist. xiv. 66. I omy (1820), p. 279. have read the same in other books, but 2 Macpherson (or Anderson), Hist. of know not at present where to search for Commerce.

Chalmers’s Estimate of the passages. Hogarth’s pictures of the Strength of Great Britain. Sinclair’s Election are evidence to the corruption in Hist.

of Revenue, cum multis aliis. his time, so also are some of Smollett’s 3

[The practice of treating at elections, novels. Addison, Swift, and Pope would not with the view of obtaining votes, but not have neglected to lash this vice if it as joyous hospitality, though carried to a had been glaring in their age; which ruinous extent, began with the country shows that the change took place about gentlemen themselves, and is complained the time I have mentioned. [This is not of soon after the Restoration.

Perhaps quite accurately stated; both the elecit was not older, at least so as to attract tion of strangers by boroughs, and its notice. Evelyn tells us of a county natural concomitant, bribery, had begun election which cost 20001. in mere eating to excite complaint by their increasing and drinking. The treating act, 7 W. frequency, as early as the reign of George III., c. 4, is very stringent in its pro-I., and led to the act rendering elections visions, and has dispossessed many of void, and inflicting severe penalties, for their seats on petition. Bribery came bribery, in 1728. But still it is true that from a different quarter.

Swift speaks, in the general election of 1747 much in the Examiner, of “
influencing distant more of it took place than ever before. - boroughs by powerful motives from the 1845.] cdty.” -1845.]

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ANNE, GEO. I. & II. SALE OF SEATS IN PARLIAMENT. 291 by the statute-book and the journals of parliament from the Revolution, it seems not to have broken down all flood-gates till near the end of the reign of George II.

But the sale of seats in parliament, like any other transferable property, is never mentioned in any book that I remember to have seen of an earlier date than 1760. We may dispense therefore with the inquiry in what manner this extraordinary traffic has affected the constitution, observing only that its influence must have tended to counteract that of the territorial aristocracy, which is still sufficiently predominant. The country gentlemen, who claimed to themselves a character of more independence and patriotism than could be found in any other class, had long endeavored to protect their ascendency by excluding the rest of the community from parliament. This was the principle of the bill which, after being frequently attempted, passed into a law during the tory administration of Anne, requiring every member of the commons, except those for the universities, to possess, as a qualification for his seat, a landed estate, above all incumbrances, of 3001. a year.’ By a later act of George II., with which it was thought expedient by the government of the day to gratify the landed interest, this property must be stated on oath by every member on taking his seat, and, if required, at his election.2 The law is, however, notoriously evaded; and, though much might be urged in favor of rendering a competent income the condition of eligibility, few would be found at present to maintain that the freehold qualification is not required both unconstitutionally, according to the ancient theory of representation, and absurdly, according to the present state of property in England. But I am again admonished, as I have frequently been in writing these last pages, to break off from subjects that might carry me too far away from the business of this history; and, content with compiling and selecting the records of the past, to shun the difficult and ambitious office of judging the present, or of speculating upon the future. 1 9 Anne, c. &5 A bill for this purpose ever, had a very fir pretext for alleging had passed the commons in 1696; the that they were interested; and in fact city of London and several other places a rider was added to the bill, that any petitioning against it. Journals, Nov.

merchant might serve for a place where 21, &c. The house refused to let some he should be himself a voter, on making of these petitions be read: I suppose on oath that he was worth 60.)1. Id. Dee the ground that they related to a matter 19. of general policy. These towns, how-2 33a.. I..

20.

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292 FEUDAL SYSTEM. CHAr. XVII. CHAPTER XVII. ON THE CONSTITUTION OF

SCOTLAND. Early State of Scotland-Introduction of Feudal System-Scots ParliamentPower of the Aristocracy-Royal Influence in ParliamentJudicial Power - Court of Session-Reformation -Power of the Presbyterian Clergy -Their Attempts at Independence on the State - Andrew Melville - Success of James VI. in restraining them - Establishment of Episcopacy -

Innovations of Charles I. -Arbitrary Government-Civil War-Tyrannical Government of Charles II. -Reign of James VII.-Revolution and Establishment of PresbyteryReign of William III. Act of Security-Union-Gradual Decline of Jacobitism. IT is not very profitable to inquire into the constitutional antiquities of a country which furnishes no authentic histoEarly rian, nor laws, nor charters, to guide our research, state of as is the case with Scotland before the twelfth Scotland. century. The latest and most laborious of her antiquaries appears to have proved that her institutions were wholly Celtic until that era, and greatly similar to those of Ireland.l A total, though probably gradual, change must therefore have taken place in the next age, brought about by means which have not been satisfactorily explained. The crown became strictly hereditary, the governors of Introduction districts took the appellation of earls, the whole of feudal kingdom was subjected to a feudal tenure, the Ansystem.

glo-Norman laws, tribunals, local and municipal magistracies were introduced as far as the royal influence could prevail; above all, a surprising number of families, chiefly Norman, but some of Saxon or Flemish descent, settled upon estates granted by the kings of Scotland, and became the founders of its aristocracy. It was, as truly as some time afterwards in Ireland, the encroachment of a Gothic and feudal polity upon the inferior civilization of the Celts, though accomplished with far less resistance, and not quite so slowly. Yet the Highland tribes long adhered to their ancient usages; nor did the laws of English origin ob1 Chalmers’s Caledonia, vol. i. passim.

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SCOTLAND. SCOTS PARLIAMENT. 293 tain in some other districts two or three centuries after their establishment on both sides of the Forth.1 It became almost a necessary consequence from this adoption of the feudal system and assimilation to the Scots English institutions, that the kings of Scotland parliament. would have their general council or parliament upon nearly the same model as that of the Anglo-Norman sovereigns they so studiously imitated. If the statutes ascribed to William the Lion, contemporary with our Henry II., are genuine, they were enacted, as we should expect to find, with the concurrence of the bishops, abbots, barons, and other good men (probi homines) of the land; meaning doubtless the inferior tenants in capite.2 These laws, indeed, are questionable, and there is a great want of unequivocal records till almost the end of the thirteenth century. The representatives of boroughs are first distinctly mentioned in 1326, under Robert I.; though some have been of opinion that vestiges of their appearance in parliament may be traced higher; but they are not enumerated among the classes present in one held in 1315.8 In the ensuing reign of David II., the three estates of the realm are expressly mentioned as the legislative advisers of the crown.4 A Scots parliament resembled an English one in the mode of convocation, in the ranks that composed it, in the enacting powers of the king, and the necessary consent of the three estates; but differed in several very important respects. No freeholders, except tenants in capite, had ever any right of suffrage; which may, not improbably, have been in some measure owing to the want of that Anglo-Saxon institution, the county-court. These feudal tenants of the crown came in person to parliament, as they did in England till the reign of Henry III., and sat together with the prelates and barons in one chamber. A prince arose in Scotland in the first part of the fifteenth century, resembling the English Justinian in his politic regard to strengthening his own prerogative and to maintaining public order. It was enacted by a law of James I., in 1427, that the smaller barons and free tenants “need not come to parliament, so that of every sheriffdom 1

Chalmers’s Caledonia, vol. i. p. 500 et 3 Id. 25; Dalrymple’s Annals, i.

139, post; Dalrymple’s Annals of Scotland, 235, 283; ii. 55, 116; Chalmers, 743. 28, 30, &c. Wight thinks they may perhaps only have 2

Chalmers, 741; Wight’s Law of Elec-had a voice in the imposition of taxes. tion in Scotland, 28. 4 Dalrymple, ii. 241; Wight, 26.

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294 POWER OF ARISTOCRACY. CHAP. XVI. there be sent two or more wise men, chosen at the head court,” to represent the rest. These were to elect a speaker, through whom they were to communicate with the king and other estates.1 This was evidently designed as an assimilation to the English house of commons. But the statute not being imperative, no regard was paid to this permission; and it is not till 1587 that we find the representation of the Scots counties finally established by law; though one important object of James’s policy was never attained, the different estates of parliament having always voted promiscuously, as the spiritual and temporal lords in England. But no distinction between the national councils of the two Power kingdoms was more essential than what appears to of the have been introduced into the Scots parliament aristocracy. under David II. In the year 1367 a parliament having met at Scone, a committee was chosen by the three estates, who seem to have had full powers delegated to them, the others returning home on account of the advanced season. The same was done in one held next year without any assigned pretext. But in 1369 this committee was chosen only to prepare all matters determinable in parliament, or fit to be therein treated, for the decision of the three estates on the last day but one of the session.2 The former scheme appeared possibly, even to those careless and unwilling legislators, too complete an abandonment of their function. But even modified as it was in 1369, it tended to devolve the whole business of parliament on this elective committee, subsequently known by the appellation of lords of the articles. It came at last to be the general practice, though some exceptions to this rule may be found, that nothing was laid before parliament without their previous recommendation and there seems reason to think that in the first parliament of James I., in 1424, such full powers were delegated to the committee as had been granted before in 1367 and 1368, and that the three estates never met again to sanction their resolutions.8 The preparatory committee is not uniformly mentioned in the preamble of statutes made during the reign of this prince and his two next successors; but there may be no reason to infer from thence that it was not appointed. From I Statutes of Scotland, 1427; Pinker-Law of Scotland, 344; Robertson’s Ht ton’s History of Scotland, i.

120; Wight, tory of Scotland, i. 84. 80. 8 Wight, 62, 65. s Dalrymple, ii.

261; Stuart on Public

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SCOTLAND. ROYAL INFLUENCE IN PARLIAMENT. 295 the reign of James IV. the lords of articles are regularly named in the records of every parliament.1

It is said that a Scots parliament, about the middle of the fifteenth century, consisted of near one hundred and ninety persons.2 We do not find, however, that more than half this number usually attended. A list of those present in 1472 gives but fourteen bishops and abbots, twenty-two earls and barons, thirty-four lairds or lesser tenants in capite, and eight deputies of boroughs.8 The royal boroughs entitled to be represented in parliament were above thirty; but it was a common usage to choose the deputies of other towns as their proxies.4 The great object with them, as well as with the lesser barons, was to save the cost and trouble of attendance. It appears indeed that they formed rather an insignificant portion of the legislative body. They are not named as consenting parties in several of the statutes of James III.; and it seems that on some occasions they had not been summoned to parliament, for an act was passed in 1504, “that the commissaries and headmen of the burghs be warned when taxes or constitutions are given, to have their advice therein, as one of the three estates of the realm.” 6 This, however, is an express recognition of their right, though it might have been set aside by an irregular exercise of power. It was a natural result from the constitution of a Scots parliament, together with the general state of society Royal in that kingdom, that its efforts were almost uni-influence in formly directed to augment and invigorate the parliament. royal authority. Their statutes afford a remarkable contrast to those of England in the absence of provisions against the 1 Id. 69. [A remarkable proof of the advertise them thereof, by his special trust vested in the lords of articles will writings, to convene such day and place be found in the Scots Statutes, vol. ii. p. as he shall think most expedient.” These 840, which is not noticed by Pinkerton. lords of articles even granted a tax. - Power was given to the lords of articles, 1845.] after a prorogation of parliament in 1535, 2 Pinkerton, i. 373. “to make acts, statutes, and constitu-s Id.

360. [In 1478 we find 24 spiritual tions for good rule, justice, and policy, and 32 temporal lords, with 22 tenants in conform to the articles to be given by the capite, or lairds, and 201 commissioners king’s grace, and as shall please any of burghs. This was unusually numerother to give and present to them. And ous. But, as Robertson observes, in the whatever they ordain or statute to have reign of James III., public indignation the same form, strength, and effect as if brought to parliament many lesser barons the same were made and statute by all and burgesses who were wont to stay the three estates being personally present. away in peaceable times. Hist. of SootAnd if any greater matter occurs, that land, i. 246.

-1845.] please his grace to have the greatest of 4 Id. 372. his prelates’

and barons’ counsel, he shall 6 Pinkerton, ii. 63.

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296 ROYAL INFLUENCE IN PARLIAMENT. CHAP. XVII. exorbitancies of prerogative.’ Robertson has observed that the kings of Scotland, from the time at least of James I., acted upon a steady system of repressing the aristocracy; and though this has been called too refined a supposition, and attempts have been made to explain otherwise their conduct, it seems strange to deny the operation of a motive so natural, and so readily to be inferred from their measures. The causes so well pointed out by this historian, and some that might be added; the defensible nature of great part of the country; the extensive possessions of some powerful families; the influence of feudal tenure and Celtic clanship; the hereditary jurisdictions, hardly controlled, even in theory, by the supreme tribunals of the crown; the custom of entering into bonds of association for mutual defence; the frequent minorities of the reigning princes; the necessary abandonment of any strict regard to monarchical supremacy during the struggle for independence against England; the election of one great nobleman to the crown, and its devolution upon another; the residence of the two first of the Stuart name in their own remote domains; the want of any such effective counterpoise to the aristocracy as the sovereigns of England possessed in its yeomanry and commercial towns; all these together placed the kings of Scotland in a situation which neither for their own nor their people’s interest they could be expected to endure. But an impatience of submitting to the insolent and encroaching temper of their nobles drove James I. (before whose time no settled scheme of reviving the royal authority seems to have been conceived) and his two next 1 In a statute of James II. (1440), ” the A remarkable expression, however, is three estates conclude that it is speedful found in a statute of the same king, in that our sovereign lord the king ride 1450; which enacts that any man rising throughout the realm incontinent as in war against the king, or receiving such shall be seen to the council where any as have committed treason, or holding rebellion, slaughter, burning, robbery, houses against the king, or assaulting outrage, or theft has happened,” &c. castles or places where the king’s power Statutes of Scotland, ii. 32. Pinkerton shall happen to be, without the consent (i. 192), leaving out the words in italics, of the three estates, shall be punished as hia argued on false premises. “In this a traitor. Pinkerton. i. 213. I am insingular decree we find the legislative dined to think that the legislators had in body regarding the king in the modern view the possible recurrence of what had light of a chief magistrate, bound equally very lately happened, that an ambitious with the meanest subject to obedience to cabal might get the king’s person into the laws,” &c. It is evident that the their power. The peculiar circumstances estates spoke in this instance as coun-of Scotland are to be taken into account cillors, not as legislators. This is merely when we consider these statutes, which an oversight of a very well informed his-are not to be looked at as mere insulated torian, who is by no means in the tram-texts. eels of any political theory.

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SCOTLAND. ROYAL INFLUENCE IN PARLIAMENT. 297 descendants into some courses which, though excused or extenuated by the difficulties of their position, were rather too precipitate and violent, and redounded at least to their own destruction. The reign of James IV., from his accession in 1488 to his unhappy death at Flodden, in 1513, was the first of tolerable prosperity; the crown having by this time obtained no inconsiderable strength, and the course of law being somewhat more established, though the aristocracy were abundantly capable of withstanding any material encroachment upon their privileges. Though subsidies were of course occasionally demanded, yet from the poverty of the realm and the extensive domains which the crown retained, they were much less frequent than in England, and thus one principal source of difference was removed; nor do we read of any opposition in parliament to what the lords of articles thought fit to propound. Those who disliked the government stood aloof from such meetings, where the sovereign was in his vigor, and had sometimes crushed a leader of faction by a sudden stroke of power; confident that they could better frustrate the execution of laws than their enactment, and that questions of right and privilege could never be tried so advantageously as in the field. Hence it is, as I have already observed, that we must not look to the statute-book of Scotland for many limitations of monarchy.

Even in one of James II., which enacts that none of the royal domains shall for the future be alienated, and that the king and his successors shall be sworn to observe this law, it may be conjectured that a provision rather derogatory in semblance to the king’s dignity was introduced by his own suggestion as an additional security against the importunate solicitations of the aristocracy whom the statute was designed to restrain.1 The next reign was the struggle of an imprudent and, as far as his means extended, despotic prince against the spirit of his subjects. In a parliament of 1487, we find almost a solitary instance of a statute that appears to have been directed against some illegal proceedings of the government. It is provided that all civil suits shall be determined by the ordinary judges, and not before the king’s council.2 James III. was killed the next year in attempting to oppose an extensive combination of the rebellious nobility. In the reign of James IV., the influence of the aristocracy 1 Pinkerton, i. 234. 2 Statutes of Scotland, ii. 177.

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298 JUDICIAL POWER. CHAP. XVII. shows itself rather more in legislation; and two peculiarities deserve notice, in which, as it is said, the legislative authority of a Scots parliament was far higher than that of our own. They were not only often consulted about peace or war, which in some instances was the case in England, but, at least in the sixteenth century, their approbation seems to have been necessary.’ This, though not consonant to our modern notions, was certainly no more than the genius of the feudal system and the character of a great deliberative council might lead us to expect; but a more remarkable singularity was, that what had been propounded by the lords of articles, and received the ratification of the three estates, did not require the king’s consent to give it complete validity. Such at least is said to have been the Scots constitution in the time of James VI.; though we may demand very full proof of such an anomaly, which the language of their statutes, expressive of the king’s enacting power, by no means leads us to infer.2 The kings of Scotland had always their aula or curia Judicial regis, claiming a supreme judicial authority, at power. least in some causes, though it might be difficult to determine its boundaries, or how far they were respected. They had also bailiffs to administer justice in their own domains, and sheriffs in every county for the same purpose, wherever grants of regality did not exclude their jurisdiction. These regalities were hereditary and territorial; they extended to the infliction of capital punishment; the lord possessing them might reclaim or repledge (as it was called, from the surety he was obliged to give that he would himself do justice) any one of his vassals who was accused before another jurisdiction. The barons, who also had cognizance of most capital offences, and the royal boroughs enjoyed the same privilege. An appeal lay, in civil suits, from the baron’s court to that of the sheriff or lord of regality, and ultimately to the parliament, or to a certain number of persons to whom it delegated its authority.3

This appellant jurisdiction of parliament, as well as that of the king’s court of privy council, which was original, came, by a session. series of provisions from the year 1425 to 1532, I Pinkerton, ii. 266. 158, et alibi; Stuart on Public Law of a Pinkerton, ii. 400; Laing, iii. 32.

Scotland. 8 Kaims’s Law Tracts; Pinkerton, i.

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SCOTLAND. REFORMATION. 299 into the hands of a supreme tribunal thus gradually constituted in its present form, the court of session. It was composed of fifteen judges, half of whom, besides the president, were at first churchmen, and soon established an entire subordination of the local courts in all civil suits. But it possessed no competence in criminal proceedings; the hereditary jurisdictions remained unaffected for some ages, though the king’s two justiciaries, replaced afterwards by a court of six judges, went their circuits even through those counties wherein charters of regality had been granted. Two remarkable innovations seem to have accompanied, or to have been not far removed in time from, the first formation of the court of session; the discontinuance of juries in civil causes, and the adoption of so many principles from the Roman law as have given the jurisprudence of Scotland a very different character from our own.1 In the reign of James V. it might appear probable that by the influence of laws favorable to public order, better enforced through the council and court of session than before, by the final subjugation of the house of Douglas and of the earls of Ross in the North, and some slight increase of wealth in the towns, conspiring with the general tendency of the sixteenth century throughout Europe, the feudal spirit would be weakened and kept under in Scotland, or display itself only in a parliamentary resistance to what might become in its turn dangerous, the encroachments of arbitrary power. But immediately afterwards a new and unexpected impulse was given; religious zeal, so blended with the ancient spirit of aristocratic independence that the two motives are scarcely distinguishable, swept before it in the first whirlwind almost every vestige of the royal sovereignty. The Ro-Re 1~…, T *^ T Reformation. man catholic religion was abolished with the forms indeed of a parliament, but of a parliament not summoned by the crown, and by acts that obtained not its assent. The Scots church had been immensely rich; its riches had led, as everywhere else, to neglect of duties and dissoluteness of life; and these vices had met with their usual punishment in the people’s hatred.2

The reformed doctrines gained a 1 Kaims’s Law Tracts; Pinkerton’s Knox, p.

15. At least one half of the History of Scotland, i. 117, 237. 388; wealth of Scotland was in the hands of -i. 313; Robertson, i. 43; Stuart on Law the clergy, chiefly of a few individuals. of Scotland. Ibid. [Robertson thinks that James V. 2 Robertson, i. 149; M’Crie’s Life of favored the clergy as a counterpoise tc

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300 PRESBYTERIAN CLERGY. CHAP. XVII. more rapid and general ascendency than in England, and were accompanied with a more strenuous and uncompromising enthusiasm. It is probable that no sovereign retaining a strong attachment to the ancient creed would long have been permitted to reign; and Mary is entitled to every presumption, in the great controversy that belongs to her name, that can reasonably be founded on this admission. But without deviating into that long and intricate discussion, it may be given as the probable result of fair inquiry that to impeach the characters of most of her adversaries would be a far easier task than to exonerate her own.1 The history of Scotland from the reformation assumes a character, not only unlike that of preceding times, but to which there is no parallel in modern ages. It became a contest, not between the crown and the feudal the presby-aristocracy, as before, nor between the assertors terian of prer6gative and of privilege, as in England, clergy. ery nor between the possessors of established power and those who deemed themselves oppressed by it, as is the the aristocracy, which may account for tation on the murder of Darnley has the eagerness of the latter, generally, in rendered Mary’s innocence, even as to the reformation.

History of Scotland, i. participation in that crime, an unten68.- 1845.]

able proposition. No one of any weight, 1 I have read a good deal on this cele-I believe, has asserted it since his time, brated controversy; but where so much except Dr. Lingard, who manages the is disputed it is not easy to form an evidence with his usual adroitness, but opinion on every point. But, upon the by admitting the general authenticity of whole, I think there are only two hy-the letters, qualified by a mere conjecpotheses that can be advanced with any ture of interpolation, has given up what color of reason. The first is, that the his predecessors deemed the very key of murder of Darnley was projected by Both-the citadel. well, Maitland, and some others, without I shall dismiss a subject so foreign to the queen’s express knowledge, but with my purpose with remarking a fallacy a reliance on her passion for the former, which affects almost the whole argument which would lead her both to shelter him of Mary’s most strenuous advocates. from punishment, and to raise him to They seem to fancy that if the earls of her bed; and that, in both respects, this Murray and Morton, and secretary Maitexpectation was fully realized by a crimi-land of Lethington can be proved to ual connivance at the escape of one whom have been concerned in Darnley’s murshe must believe to have been concerned der, the queen herself is at once absolved.

in her husband’s death, and by a still But it is generally agreed that Maitland more infamous marriage with him. This, was one of those who conspired with it appears to me, is a conclusion that Bothwell for this purpose; and Morton, may be drawn by reasoning on admitted if he were not absolutely consenting, was, facts, according to the common rules of by his own acknowledgment at his exepresumptive evidence. The second sup-cution, apprised of the conspiracy. With position is, that she had given a previous respect to Murray indeed there is not consent to the assassination. This is a shadow of evidence, nor had he any rendered probable by several circum-probable motive to second Bothwell’s stances, and especially by the famous schemes; but, even if his participation letters and sonnets, the genuineness of were presumed, it would not alter in the which has been so warmly disputed. I slightest degree the proofs as to the must confess that they seem to me queen. authentic, and that Mr.

Laing’s disser

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SCOTLAND PRESBYTERIAN CLERGY. 301 usual source of civil discord, but between the temporal and spiritual authorities, the crown and the church-that in general supported by the legislature, this sustained by the voice of the people. Nothing of this kind, at least in anything like so great a degree, has occurred in other protestant countries -the Anglican church being, in its original constitution, bound up with the state as one of its component parts, but subordinate to the whole; and the ecclesiastical order in the kingdoms and commonwealths of the Continent being either destitute of temporal authority or at least subs ject to the civil magistrate’s supremacy. Knox, the founder of the Scots reformation, and those who concurred with him, both adhered to the theological system of Calvin, and to the scheme of Theip atpolity he had introduced at Geneva, with such dependence on the state. modifications as became necessary from the greater scale on which it was to be practised. Each parish had its minister, lay-elder, and deacon, who held their kirk-session for spiritual jurisdiction and other purposes; each ecclesiastical province its synod of ministers and delegated elders presided over by a superintendent; but the supreme power resided in the general assembly of the Scots church, constituted of all ministers of parishes, with an admixture of delegated laymen, to which appeals from inferior judicatories lay, and by whose determinations or canons the whole were bound. The superintendents had such a degree of episcopal authority as seems implied in their name, but concurrently with the parochial ministers, and in subordination to the general assembly; the number of these was designed to be ten, but only five were appointed.1 This form of church polity was set up in 1560; but according to the irregular state of things at that time in Scotland, though fully admitted and acted upon, it had only the authority of the church, with no confirmation of parliament, which seems to have been the first step of the former towards the independency it came to usurp.

Meanwhile it was agreed that the Roman catholic prelates, including the regulars, should enjoy two 1 Spottiswood’s Church History, 152; this important period of history; the first M’Crie’s life of Knox, ii, 6; Life of Mel-with an intenseness of sympathy that ville, i. 143; Robertson’s History of Scot-enhances our interest, though it may not land; Cook’s History of the Reformation always command our approbation; the in Scotland. These three modern writers two last with a cooler and more philoleave, apparently, little to require as to sophical impartiality.

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302 ANDREW MELVILLE. CHAP. XVII. thirds of their revenues, as well as their rank and seats in parliament, the remaining third being given to the crown, out of which stipends should be allotted to the protestant clergy.

Whatever violence may be imputed to the authors of the Scots reformation, this arrangement seems to display a moderation which we should vainly seek in our own. The new church was, however, but inadequately provided for; and perhaps we may attribute some part of her subsequent contumacy and encroachment on the state to the exasperation occasioned by the latter’s parsimony, or rather rapaciousness, in the distribution of ecclesiastical estates.1 It was doubtless intended by the planners of a presbyterian model that the bishoprics should be extinguished by the death of the possessors, and their revenues be converted partly to the maintenance of the clergy, partly to other public interests. But it suited better the men in power to keep up the old appellations for their own benefit. As the catholic prelates died away, they were replaced by protestant ministers, on private compacts to alienate the principal part of the revenues to those through whom they were appointed. After some hesitation, a convention of the church, in 1572, agreed to recognize these bishops until the king’s majority and a final settlement by the legislature, and to permit them a certain portion of jurisdiction, though not greater than that of the superintendent, and equally subordinate to the general assembly. They were not consecrated, nor would the slightest distinction of order have been endured by the church. Yet even this moderated episcopacy gave offence to ardent Andrew men, led by Andrew Melville, the second name to Melville. Knox in the ecclesiastical history of Scotland; and, notwithstanding their engagement to leave things as they were till the determination of parliament, the general assembly soon began to restrain the bishops by their own authority, and finally to enjoin them, under pain of excommunication, to lay down an office which they voted to be destitute of warrant from the word of God, and injurious to the church.

Some of the bishops submitted to this decree; others, as might be expected, stood out in defence of their dignity, and were supported both by the king and by all who conceived 1 MWCrie’s Life of Knox, ii. 197, et alibi; taut church, at least in Mary’s reign, Cook, iii. 308. According to Robertson, was about 24,000 pounds Scots, which i. 291, the whole revenue of the protes-seems almost incredible.

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SCOTLANI ANDREW MELVILLE. 803 that the supreme power of Scotland, in establishing and endowing the church, had not constituted a society independent of the commonwealth. A series of acts in 1584, at a time when the court had obtained a temporary ascendant, seemed to restore the episcopal government in almost its pristine lustre. But the popular voice was loud against episcopacy; the prelates were discredited by their simoniacal alienations of church revenues, and by their connection with the court; the king was tempted to annex most of their lands to the crown by an act of parliament in 1587; Adamson, archbishop of St. Andrews, who had led the episcopal party, was driven to a humiliating retractation before the general assembly; and, in 1592, the sanction of the legislature was for the first time obtained to the whole scheme of presbyterian polity, and the laws of 1584 were for the most part abrogated. The school of Knox, if so we may call the early presbyterian ministers of Scotland, was full of men breathing their master’s spirit - acute in disputation, eloquent in discourse, learned beyond what their successors have been, and intensely zealous in the cause of reformation. They wielded the people at will, who, except in the Highlands, threw off almost with unanimity the old religion, and took alarm at the slightest indication of its revival.

Their system of local and general assemblies infused, together with the forms of a republic, its energy and impatience of exterior control, combined with the concentration and unity of purpose that belongs to the most vigorous government. It must be confessed that the unsettled state of the kingdom, the faults and weakness of the regents Lennox and Morton, the inauspicious beginning of James’s personal administration under the sway of unworthy favorites, the real perils of the reformed church, gave no slight pretext for the clergy’s interference with civil policy. Not merely in their representative assemblies, but in the pulpits, they perpetually remonstrated, in no guarded language, against the misgovernment of the court, and even the personal indiscretions of the king. This they pretended to claim as a privilege beyond the restraint of law. Andrew Melville having been summoned before the council in 1584, to give an account of some seditious language alleged to have been used by him in the pulpit, declined its jurisdiction on the ground that he was only responsible, in the first instance, to his presbytery for words so spoken, of which the king and council

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304 SUCCESS OF JAMES VI. CHAP. XVII. could not judge without violating the immunities of the church. Precedents for such an immunity it would not have been difficult to find; but they must have been sought in the archives of the enemy. It was rather early for the new republic to emulate the despotism she had overthrown. Such, however, is the uniformity with which the same passions operate on bodies of men in similar circumstances; and so greedily do those whose birth has placed them far beneath the possession of power, intoxicate themselves with its unaccustomed enjoyments. It has been urged in defence of Melville, that he only denied the competence of a secular tribunal in the first instance; and that, after the ecclesiastical forum had pronounced on the spiritual offence, it was not disputed that the civil magistrate might vindicate his own authority.’ But not to mention that Melville’s claim, as I understand it, was to be judged by his presbytery in the first instance, and ultimately by the general assembly, from which, according to the presbyterian theory, no appeal lay to a civil court; it is manifest that the government would have come to a very disadvantageous conflict with a man to whose defence the ecclesiastical judicature had already pledged itself. For in the temper of those times it was easy to foresee the determination of a synod or presbytery. James, however, and his councillors were not so feeble as to endure this open renewal of those extravagant Success of James vI. in pretensions which Rome had taught her priesthood trheaiming to assert.

Melville fled to England; and a parliament that met the same year sustained the supremacy of the civil power with that violence and dangerous latitude of expression so frequent in the Scots statute-book. It was made treason to decline the jurisdiction of the king or council in any matter, to seek the diminution of the power of any of the three estates of parliament, which struck at all that had been done against episcopacy, to utter, or to conceal, when heard from others in sermons or familiar discourse, any false or slanderous speeches to the reproach of the king, his council, or their proceedings, or to the dishonor of his parents and progenitors, or to meddle in the affairs of state. It was 1 M’Crie’s Life of Melville, i. 287, 296. would not tremble; but his presbyterian It is impossible to think without respect Hildebrandism is a little remarkable in of this most powerful writer, before whom this age. there are few living controversialists that

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SCOTLAND. IN RESTRAINING PRESBYTERIANS. 30f forbidden to treat or consult on. any matter of state, civil or ecclesiastical, without the king’s express command -thus rendering the general assembly for its chief purposes, if not its existence, altogether dependent on the crown. Such laws not only annihilated the pretended immunities of the church, but went very far to set up that tyranny which the Stuarts afterwards exercised in Scotland till their expulsion. These were in part repealed, so far as affected the church, in 1592; but the crown retained the exclusive right of convening its general assembly, to which the presbyterian hierarchy still gives but an evasive and reluctant obedience.1 These bold demagogues were not long in availing themselves of the advantages which they had obtained in the parliament of 1592, and through the troubled state of the realm. They began again to intermeddle with public affairs, the administration of which was sufficiently open to censure. This license brought on a new crisis in 1596. Black, one of the ministers of St.

Andrews, inveighing against the government from the pulpit, painted the king and queen, as well as their council, in the darkest colors, as dissembling enemies to religion. James, incensed at this attack, caused him to be summoned before the privy council. The clergy decided to make common cause with the accused. The council of the church, a standing committee lately appointed by the general assembly, enjoined Black to decline the jurisdiction. The king by proclamation directed the members of this council to retire to their several parishes. They resolved, instead of submitting, that since they were convened by the warrant of Christ, in a most needful and dangerous time, to see unto the good of the church, they should obey God rather than man. The king offered to stop the proceedings, if they would but declare that they did not decline the civil jurisdiction absolutely, but only in the particular case, as being one of slander, and consequently of ecclesiastical competence. For Black had asserted before the council, that speeches delivered in the pulpits, although alleged to be treasonable, could not be judged by the king until the church had first taken cognizance thereof. But these ecclesiastics, in the full spirit of the thirteenth century, determined by a majority not to recede from their plea. Their contest with the court soon excited the populace of Edinburgh, and gave rise to a tumult whicht I M’Crie’s Life of Melville; Robertson, Spottiswood VOL. III. 20

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306 ESTABLISHMENT OF EPISCOPACY. CHAP. XVII. whether dangerous or not to the king, was what no government could pass over without utter loss of authority. It was in church assemblies alone that James found opposition.

His parliament, as had invariably been the case in Scotland, went readily into all that was proposed to them; nor can we doubt that the gentry must for the most part have revolted from these insolent usurpations of the ecclesiastical order. It was ordained in parliament that every minister should declare his submission to the king’s jurisdiction in all matters civil and criminal, that no ecclesiastical judicatory should meet without the king’s consent, and that a magistrate might commit to prison any minister reflecting in his sermons on the king’s conduct. He had next recourse to an instrument of power more successful frequently than intimidation, and generally successful in conjunction with it-gaining over the members of the general assembly, some by promises, some by exciting jealousies, till they surrendered no small portion of what had passed for the privileges of the church. The crown obtained by their concession, which then seemed almost necessary to confirm what the legislature had enacted, the right of convoking assemblies, and of nominating ministers in the principal towns. James followed up this victory Establish-by a still more important blow. It was enacted ment of that fifty-one ministers, on being nominated by the episcopacy. king to titular bishoprics and other prelacies, might sit in parliament as representatives of the church. This seemed justly alarming to the opposite party; nor could the general assembly be brought to acquiesce without such very considerable restrictions upon these suspicious commissioners, by which name they prevailed to have them called, as might in some measure afford security against the revival of that episcopal domination, towards which the endeavors of the crown were plainly directed. But the king paid little regard to these regulations; and thus the name and parliamentary station of bishops, though without their spiritual functions, were restored in Scotland after only six years from their abolition.1 1 Spottiswood; Robertson; M’Crie. whole world, and especially for the [In the 55th canon, passed by the conchurches of England, Scotland, and Irevocation at London in 1603, the clergy land.” A learned writer reckons this are directed to bid the people to “pray among the canons, the observance of for Christ’s holy catholic church, that which is impossible. Cardwell’s Synodaia, for the whole congregation of Chris. lia, preface, p. xxviii. By this singular’lan people dispersed throughout the word he of course means that it ought

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SCOTLAND. ESTABLISHMENT OF EPISCOPACY. 307 A king like James, not less conceited of his wisdom than full of the dignity of his station, could not avoid contracting that insuperable aversion to the Scots presbytery which he expressed in his Basilicon Doron before his accession to the English throne, and more vehemently on all occasions afterwards. He found a very different race of churchmen, well trained in the supple school of courtly conformity, and emulous flatterers both of his power and his wisdom. The ministers of Edinburgh had been used to pray that God would turn his heart: Whitgift, at the conference of Hampton Court, falling on his knees, exclaimed, that he doubted not his majesty spoke by the special grace of God. It was impossible that he should not redouble his endeavors to introduce so convenient a system of ecclesiastical government into his native kingdom. He began, accordingly, to prevent the meetings of the general assembly by continued prorogations. Some hardy presbyterians ventured to assemble by their own authority, which the lawyers construed into treason. The bishops were restored by parliament, in 1606, to a part of their revenues, the act annexing these to the crown being repealed.

They were appointed by an ecclesiastical convention, more subservient to the crown than formerly, to be perpetual moderators of provincial synods.

The clergy still gave way with reluctance; but the crown had an irresistible ascendency in parliament; and in 1610 the episcopal system was thoroughly established. The powers of ordination, as well as jurisdiction, were solely vested in the prelates; a court of high commission was created on the English model; and, though the general assembly of the church still continued, it was merely as a shadow, and almost mockery, of its original importance. The bishops now repaired to England for consecration - a ceremony deemed essential in the new school that now predominated in the Anglican church; and this gave a final blow to the polity in which the Scottish reformation had been founded.l With far more questionable prudence, James, some years afterwards, forced upon the people of Scotland what were called the five articles of Perth, reluctantly adopted by a general assembly held there in 1617. not to be done; and in fact I never heard church of Scotland was, properly speakthe church of Scotland so distinguished, ing, as much presbyterian in 1603 as at except once, by a Master of the Temple present. -1845.] (Rennell). But it has evidently escaped 1 M’Crie’s Life of Melville, ii. 378; La Dr.

Cardwell’s recollection, that the ing’s Hist. Scotland, iii. 20, 6,42, 62.

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308 ESTABLISHMENT OF EPISCOPACY. CHAP. XVII These were matters of ceremony, such as the posture of kneeling in the eucharist, the right of confirmation, and the observance of certain holidays, but enough to alarm a nation fanatically abhorrent of every approximation to the Roman worship, and already incensed by what they deemed the corruption and degradation of their church.1 That church, if indeed it preserved its identity, was wholly changed in character, and became as much distinguished in its episcopal form by servility and corruption as during its presbyterian democracy by faction and turbulence. The bishops at its head, many of them abhorred by their own countrymen as apostates and despised for their vices, looked for protection to the sister church of England in its pride and triumph. It had long been the favorite project of the court, as it naturally was of the Anglican prelates, to assimilate in all respects the two establishments. That of Scotland still wanted one essential characteristic, a regular liturgy. But in preparing what was called the service-book, the English model was not closely followed; the variations having all a tendency towards the Romish worship. It is far more probable that Laud intended these to prepare the way for a similar change in England, than that, as some have surmised, the Scots bishops, from a notion of independence, chose thus to distinguish their own ritual.

What were the consequences of this unhappy innovation, attempted with that ignorance of mankind which kings and priests, when left to their own guidance, usually display, it is here needless to mention. In its ultimate results, it preserved the liberties and overthrew the monarchy of England.

In its more immediate effects, it gave rise to the national covenant of Scotland; a solemn pledge of unity and perseverance in a great public cause, long since devised when the Spanish armada threatened the liberties and religion of all Britain, but now directed against ~the domestic enemies of both. The episcopal government had no friends, even among those who served the king. To him it was dear by the sincerest conviction, and by its connection with absolute power, still more close and direct than in England. But he had reduced himself to a condition where it was necessary to sacrifice his authority in the smaller kingdom, if he would hope to preserve it in the greater; and in this view he consented, in the parliament of 1641, to 1 Laing, 4 89.

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SCOTLAND. INNOVATIONS OF CHARLES I. 309 restore the presbyterian discipline of the Scots church; an offence against his conscience (for such his prejudices led him to consider it) which he deeply afterwards repented, when he discovered how absolutely it had failed of serving his interests. In the great struggle with Charles against episcopacy, the encroachments of arbitrary rule, for the sake of Inno^ which, in a great measure, he valued that form of tions of church polity, were not overlooked; and the par-hae liament of 1641 procured some essential improvements in the civil constitution of Scotland. Triennial sessions of the legislature, and other salutary reformations, were borrowed from their friends and coadjutors in England. But what was still more important, was the abolition of that destructive control over the legislature, which the crown had obtained through the lords of articles. These had doubtless been originally nominated by the several estates in parliament, solely to expedite the management of business, and relieve the entire body from attention to it. But, as early as 1561, we find a practice established, that the spiritual lords should choose the temporal, generally eight in number, who were to sit on this committee, and conversely; the burgesses still electing their own. To these it became usual to add some of the officers of state; and in 1617 it was established that eight of them should be on the list. Charles procured, without authority of parliament, a further innovation in 1633. The bishops chose eight peers, the peers eight bishops; and these appointed sixteen commissioners of shires and boroughs. Thus the whole power was devolved upon the bishops, the slaves and sycophants of the crown. The parliament itself met only on two days, the first and last of their pretended session, the one time in order to choose the lords of articles, the other to ratify what they proposed.1 So monstrous an anomaly could not long subsist in a high-spirited nation.

This improvident assumption of power by low-born and odious men precipitated their downfall, and made the destruction of the hierarchy appear the necessary guarantee for parliamentary independence, and the ascendant of the aristocracy, But lest the court might, in some other form, regain this preliminary or initiative voice in legislation, which the experience of many governments has shown to be the surest 1 Wight, 69
et post.

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310 ARBITRARY GOVERNMENT. CHAP. XVII. method of keeping supreme authority in their hands, it was enacted in 1641, that each estate might choose lords of articles or not, at its discretion; but that all propositions should in the first instance be submitted to the whole parliament, by whom such only as should be thought fitting might be referred to the committee of articles for consideration. This parliament, however, neglected to abolish one of the Arbitrary most odious engines that tyranny ever devised government. against public virtue, the Scots law of treason. It had been enacted by a statute of James I. in 1424, that all leasing-makers, and tellers of what might engender discord between the king and his people, should forfeit life and goods.1 This act was renewed under James II., and confirmed in 1540.2 It was aimed at the factious aristocracy, who perpetually excited the people by invidious reproaches against the king’s administration. But in 1584, a new antagonist to the crown having appeared in the presbyterian pulpits, it was determined to silence opposition by giving the statute of leasing-making, as it was denominated, a more sweeping operation. Its penalties were accordingly extended to such as should “utter untrue or slanderous speeches, to the disdain, reproach, and contempt of his highness, his parents and progenitors, or should meddle in the affairs of his highness or his estate.” The “hearers and not reporters thereof” were subjected to the same punishment. It may be remarked that these Scots statutes are worded with a latitude never found in England, even in the worst times of Henry VIII. Lord Balmerino, who had opposed the court in the parliament of 1633, retained in his possession a copy of an apology intended to have been presented by himself and other peers in their exculpation, but from which they had desisted, in apprehension of the king’s displeasure. This was obtained clandestinely, and in breach of confidence, by some of his enemies; and he was indicted on the statute of leasing-making, as having concealed a slander against his majesty’s government. A jury was returned with gross partiality; yet so outrageous was the attempted violation of justice that Balmerino was only convicted by a majority of eight against seven. For in Scots juries a simple majority was sufficient, as it is still in all I Statutes of Scotland, vol. il. p. 8; 2 Statutes of Scotland, p. 860. Pinkerton, i. 115; Laing, iii. 117

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SCOTLANr ARBITRARY GOVERNMENT. 3 1 cases except treason. It was not thought expedient to carry this sentence into execution; but the kingdom could never pardon its government so infamous a stretch of power.1 The statute itself; however, seems not to have shared the same odium; we do not find any effort made for its repeal; and the ruling party in 1641, unfortunately, did not scruple to make use of its sanguinary provisions against their own adversaries.2 The conviction of Balmerino is hardly more repugnant to justice than some other cases in the long reign of James VI.

Eight years after the execution of the earl of Gowrie and his brother, one Sprot, a notary, having indiscreetly mentioned that he was in possession of letters, written by a person since dead, which evinced his participation in that mysterious conspiracy, was put to death for concealing them.8 Thomas Ross suffered, in 1618, the punishment of treason for publishing at Oxford a blasphemous libel, as the indictment calls it, against the Scots nation.4 I know not what he could have said worse than what their sentence against him enabled others to say, that, amidst a great vaunt of Christianity and civilization, they took away men’s lives by such statutes, and such constructions of them, as could only be paralleled in the annals of the worst tyrants. By an act of 1584, the privy council were empowered to examine an accused party on oath; and if he declined to answer any question, it was held denial of their jurisdiction, and amounted to a conviction of treason. This was experienced by two Jesuits, Crighton and Ogilvy, in 1610 and 1615, the latter of whom was executed.5 One of the statutes, upon which he was indicted contained the singular absurdity of “annulling and rescinding everything I Laing, ibid. 5 Arnot, p. 67, 329; State Trials, ii. 2 Arnot’s Criminal Trials, p. 122. 884. The prisoner was told that he was s The Gowrie conspiracy is well known not charged for saying mass, nor for to be one of the most difficult problems in seducing the people to popery, nor tor history. Arnot has given a very good anything that concerned his conscience; account of it, p. 20, and shown its truth, but for declining the king’s authority, which could not reasonably be ques-and maintaining treasonable opinions, as tioned, whatever motive we may assign the statutes libelled on made it treason for it. He has laid stress on Logan’s not to answer the king or his council in, letters, which appear to have be n unac-any matter which should be demanded: countably slighted by some writers. I It was one of the most monstrous init have long had a suspicion, founded *n quities of a monstrous jurisprudence, the: these letters, that the earl of Bothwell, Scots criminal law, to debar a prisoner a daring man of desperate fortunes, was from any defence inconsistent with the, in some manner concerned in the plot, of indictment; that is, he might deny &a Which the earl of Gowrie and his brother fact, but was not permitted to assert were the instruments. that, being true, it did not warrant the 4 Arnot’s Criminal Trials, p. 70.

conclusion of guilt. Arnot, 354.

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312 CIVIL WAR. CHAP. XVII done, or hereafter to be done, in prejudice of the royal prerogative, in any time bygone or to come.” It was perhaps impossible that Scotland should remain __vi ar. indifferent in the great quarrel of the sister kingdom. But having set her heart upon two things incompatible in themselves from the outset, according to the circumstances of England, and both of them ultimately impracticable, the continuance of Charles on the throne and the establishment of a presbyterian church, she fell into a long course of disaster and ignominy, till she held the name of a free constitution at the will of a conqueror. Of the three most conspicuous among her nobility in this period, each died by the hand of the executioner; but the resemblance is in nothing besides; and the characters of Hamilton, Montrose, and Argyle are not less contrasted than the factions of which they were the leaders. Humbled and broken down, the people looked to the reestablishment of Charles II. on the throne of his fathers, though brought about by the sternest minister of Cromwell’s tyranny, not only as the augury of prosperous days, but as the obliteration of public dishonor. They were miserably deceived in every hope. Thirty rannical infamous years consummated the misfortunes and govern-degradation of Scotland. Her factions have alChales II ways been more sanguinary, her rulers more oppressive, her sense of justice and humanity less active, or at least shown less in public acts, than can be charged against England. The parliament of 1661, influenced by wicked statesmen and lawyers, left far behind the royalist commons of London; and rescinded as null the entire acts of 1641, on the absurd pretext that the late king had passed them through force. The Scots constitution fell back at once to a state little better than despotism. The lords of articles were revived, according to the same form of election as under Charles I. A few years afterwards the duke of Lauderdale obtained the consent of parliament to an act, that whatever the king and council should order respecting all ecclesiastical matters, meetings, and persons, should have the force of law. A militia, or rather army, of 22,000 men, was established, to march wherever the council should appoint, and the honor and safety of the king require. Fines to the amount of 85,0001., an enormous sum in that kingdom, were imposed on the covenanters. The earl of

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SCOTLAND. TYRANNY OF CHARLES I. 313 Argyle brought to the scaffold by an outrageous sentence, his son sentenced to lose his life on such a construction of the ancient law against leasing-making as no man engaged in political affairs could be sure to escape, the worst system of constitutional laws administered by the worst men, left no alternative but implicit obedience or desperate rebellion. The presbyterian church of course fell by the act which annulled the parliament wherein it had been established, Episcopacy revived, but not as it had once existed in Scotland; the jurisdiction of the bishops became unlimited; the general assemblies, so dear to the people, were laid aside.1 The new prelates were odious as apostates, and soon gained a still more indelible title to popular hatred as persecutors. Three hundred and fifty of the presbyterian clergy (more than one third of the whole number) were ejected from their benetices.2 Then began the preaching in conventicles, and the secession of the excited and exasperated multitude from the churches; and then ensued the ecclesiastical commission with its inquisitorial vigilance, its fines and corporal penalties, and the free quarters of the soldiery, with all that can be implied in that word. Then came the fruitless insurrection, the fanatical assurance of success, and the certain discomfiture by a disciplined force, and the consternation of defeat, and the unbounded cruelties of the conqueror. And this went on with perpetual aggravation, or very rare intervals, through the reign of Charles; the tyranny of Lauderdale far exceeding that of Middleton, as his own fell short of the duke of York’s. No part, I believe, of modern history for so long a period, can be compared for the wickedness of government to the Scots administration of this reign. In proportion as the laws grew more rigorous against the presbyterian worship, its followers evinced more steadiness; driven from their conventicles, they resorted sometimes by night to the fields, the woods, the mountains; and, as the troops were continually employed to disperse them, they came with arms which they were often obliged to use; and thus the hour, the place, the circumstance, deepened 1

Laing, iv. 20; Kirkton, p, 141. 2 Laing, iv. 32. Kirkton says 800. P. “

Whoso shall compare,” he says, ” this 149. These were what were called the set of bishops with the old bishops estab-young ministers, those who had entered lished in the year 1612, shall find that the church since 1649.

They might have these were but a sort of pigmies corn-kept their cures by acknowledging the pared with our new bishops.” authority of bishops.

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314 TYRANNY OF CHARLES II. CHP. XVII. every impression, and bound up their faith with indissoluble associations. The same causes produced a dark fanaticism, which believed the revenge of its own wrongs to be the execution of divine justice; and, as this acquired new strength by every successive aggravation of tyranny, it is literally possible that a continuance of the Stuart government might have led to something very like an extermination of the people in the western counties of Scotland. In the year 1676 letters of intercommuning were published; a writ forbidding all persons to hold intercourse with the parties put under its ban, or to furnish them with any necessary of life, on pain of being reputed guilty of’ the same crime. But seven years afterwards, when the Cameronian rebellion had assumed a dangerous character, a proclamation was issued against all who had ever harbored or communed with rebels; courts were appointed to be held for their trial as traitors, which were to continue for the next three years. Those who accepted the test, a declaration of passive obedience repugnant to the conscience of the presbyterians and imposed for that reason in 1681, were excused from these penalties; and in this way they were eluded. The enormities of this detestable government are far too numerous, even in species, to be enumerated in this slight sketch; and of course most instances of cruelty have not been recorded.

The privy council was accustomed to extort confessions by torture; that grim divan of bishops, lawyers, and peers sucking in the groans of each undaunted enthusiast, in hope that some imperfect avowal might lead to the sacrifice of other victims, or at least warrant the execution of the present. It is said that the duke of York, whose conduct in Scotland tends to efface those sentiments of pity and respect which other parts of his life might excite, used to assist himself on these occasions.1 One Mlitchell having been induced, by a promise that his life should be spared, to confess an attempt to assassinate Sharp the primate, was brought to trial some years afterwards; when four lords of the council deposed on oath that no such assurance had been given him; and Sharp insisted upon his execution. The vengeance ultimately taken on this infamous apostate and persecutor, though doubtless in violation of what is justly 1 Laing, iv. 116.

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SCOTLAND. TYRANNY OF CHARLES II. 315 reckoned an universal rule of morality, ought at least not to weaken our abhorrence of the man himself.

The test above mentioned was imposed by parliament in 1681, and contained, among other things, an engagement never to attempt any alteration of government in church or state. The earl of Argyle, son of him who had perished by an unjust sentence, and himself once before attainted by another, though at that time restored by the king, was still destined to illustrate the house of Campbell by a second martyrdom. He refused to subscribe the test without the reasonable explanation that he would not bind himself from attempting, in his station, any improvement in church or state. This exposed him to an accusation of leasing-making (the old mystery of iniquity in Scots law) and of treason. He was found guilty through the astonishing audacity of the crown lawyers and servility of the judges and jury. It is not perhaps certain that his immediate execution would have ensued; but no man ever trusted securely to the mercies of the Stuarts, and Argyle escaped in disguise by the aid of his daughter-in-law.

The council proposed that this lady should be publicly whipped; but there was an excess of atrocity in the Scots on the court side, which no Englishman could reach; and the duke of York felt as a gentleman upon such a suggestion.1 The earl of Argyle was brought to the scaffold a few years afterwards on this old sentence; but after his unfortunate rebellion, which of course would have legally justified his execution. The Cameronians, a party rendered wild and fanatical through intolerable oppression, published a declaration, wherein, after renouncing their allegiance to Charles, and expressing their abhorrence of murder on the score of religion, they announced their determination of retaliating, according to their power, on such privy councillors, officers in command, or others, as should continue to seek their blood. The fate of Sharp was thus before the eyes of all who emulated his crimes; and in terror the council ordered, that whoever refused to disown this declaration on oath, should be put to death in the presence of two witnesses. Every officer, every soldier, was thus intrusted with the privilege of massacre; the unarmed, the women and children, fell indiscriminately by the sword: and besides the distinct testimonies that re1 Life of James II., i. 710

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316 REIGN OF JAMES VII. CHAP. XVII. main of atrocious cruelty, there exists in that kingdom a deep traditional horror, the record, as it were, of that confused mass of crime and misery which has left no other memorial.1 A parliament summoned by James on his accession, with Reign of an intimation from the throne that they were asJames VI. sembled not only to express their own duty, but to set an example of compliance to England, gave, without the least opposition, the required proofs of loyalty. They acknowledged the king’s absolute power, declared their abhorrence of any principle derogatory to it, professed an unreserved obedience in all cases, bestowed a large revenue for life. They enhanced the penalties against sectaries; a refusal to give evidence against traitors or other delinquents was made equivalent to a conviction of the same offence; it was capital to preach even in houses, or to hear preachers in the fields.

The persecution raged with still greater fury in the first part of this reign. But the same repugnance of the episcopal party to the king’s schemes for his own religion, which led to his remarkable change of policy in England, produced similar effects in Scotland. He had attempted to obtain from parliament a repeal of the penal laws and the test; but, though an extreme servility or a general intimidation made the nobility acquiesce in his propositions, and two of the bishops were gained over, yet the commissioners of shires and boroughs, who voting promiscuously in the house had, when united, a majority over the peers, so firmly resisted every encroachment of popery, that it was necessary to try other methods than those of parliamentary enactment. After the dissolution the dispensing power was brought into play; the privy council forbade the execution of the laws against the catholics; several of that religion were introduced to its board; the royal boroughs were deprived of their privileges, the king assuming the nomination of their chief magistrates, so as to throw the elections wholly into the hands of the crown. A declaration of indulgence, emanating from the king’s absolute prerogative, relaxed the severity of the laws against presbyterian conventicles, and, annulling the oath of supremacy and the test of 1681, substituted for them an oath of allegiance, acknowledging his power to be unlimited. He 1 Cloud of Witnesses, passim; De Foe’s Laing; Scott’s notes in Minstrelsy of History of Church of Scotland; Kirkton; Scottish Border, &c., &c.

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SCOTLAND. REVOLUTION. 317 promised at the same time, that ” he would use no force nor invincible necessity against any man on account of his persuasion, or the protestant religion, nor would deprive the possessors of lands formerly belonging to the chmrch.” A very intelligible hint that the protestant religion was to exist only by this gracious sufferance. The oppressed presbyterians gained solme respite by this indulgence, though instances of executions under the sanguinary statutes of the late reign are f9und Redoutbon as late as the beginning of 1688. But the memory lishment of of their sufferings was indelible; they accepted, presbytery.

but with no gratitude, the insidious mercy of. a tyrant they abhorred. The Scots conspiracy with the prince of Orange went forward simultaneously with that of England; it ineluded several of the council, from personal jealousy, dislike of the king’s proceedings as to religion, or anxiety to secure an indemnity they had little deserved in the approaching crisis.

The people rose in different parts; the Scots nobility and gentry in London presented an address to the prince of Orange, requesting him to call a convention of the estates; and this irregular summons was universally obeyed. The king was not without friends in this convention; but the whigs had from every cause a decided preponderance. England had led the way; William was on his throne; the royal government at home was wholly dissolved; and, after enumerating in fifteen articles the breaches cqmmitted on the constitution, the estates came to a resolution T ” That James VII., being a professed papist, did assume tFle royal power, and acted as king, without ever taking the oath required by law, and had, by the advice of evil and wicked counsellors, invaded the fundamental constitution of the kingdom, and altered it from a legal limited monarchy to an arbitrary despotic power, and hath exerted the same to the subversion of the protestant religion, and the violation of the laws and liberties of the kingdom, whereby he hath forfaulted (forfeited) his right to the crown, and the throne has become vacant.” It was evident that the English vote of a constructive abdication, having been partly grounded on the king’s flight, could not without still greater violence be applied to Scotland; and consequently the bolder denomination of forfeiture was necessarily employed to express the penalty of his misgovernlment There was, in fact, a very striking difference in the circum

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318 REIGN OF WILLIAM III. CHAP. XVII. stances of the two kingdoms. In the one, there had been illegal acts and unjustifiable severities; but it was, at first sight, no very strong case for national resistance, which stood rather on a calculation of expediency than an instinct of selfpreservation or an impulse of indignant revenge. But in the other, it had been a tyranny, dark as that of the most barbarous ages; despotism, which in England was scarcely in blossom, had borne its bitter and poisonous fruits: no word of slighter import than forfeiture could be chosen to denote the national rejection of the Stuart line. A declaration and claim of rights was drawn up, as in Reign of England, together with the resolution that the William m. crown be tendered to William and Mary, and descend afterwards in conformity with the limitations enacted in the sister kingdom. This declaration excluded papists from the throne, and asserted the illegality of proclamations to dispense with statutes, of the inflicting capital punishment without jury, of imprisonment without special cause or delay of trial, of exacting enormous fines, of nominating the magistrates in boroughs, and several other violent proceedings in the two last reigns. These articles the convention challenged as their undoubted right, against which no declaration or precedent ought to operate. They reserved some other important grievances to be redressed in parliament. Upon this occasion a noble fire of liberty shone forth to the honor of Scotland, amidst those scenes of turbulent faction or servile corruption which the annals of her parliament so perpetually displayed.

They seemed emulous of English freedom, and proud to place their own imperfect commonwealth on as firm a basis. One great alteration in the state of Scotland was almost necessarily involved in the fall of the Stuarts. Their most conspicuous object had been the maintenance of the episcopal church; the line was drawn far more closely than in England; in that church were the court’s friends, out of it were its opponents. Above all, the people were out of it, and in a revolution brought about by the people, their voice zould not be slighted. It was one of the articles accordingly in the declaration of rights, that prelacy and precedence in ecclesiastical office were repugnant to the genius of a nation reformed by presbyters, and an insupportable grievance which ought to be abolished.

William, there is reason to

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SCOTLANL, DOWNFALL OF EPISCOPACY. 319 believe, had offered to preserve the bishops, in return for their support in the convention. But this, not more happily for Scotland than for himself and his successors, they refused to give. No compromise, or even acknowledged toleration, was practicable in that country between two exasperated factions; but, if oppression was necessary, it was at least not on the majority that it ought to fall. But besides this, there was as clear a case of forfeiture in the Scots episcopal church as in the royal family of Stuart. The main controversy between the episcopal and presbyterian churches was one of historical inquiry, not perhaps capable of decisive solution; it was at least one as to which the bulk of mankind are absolutely incapable of forming a rational judgment for themselves. But, mingled up as it had always been, and most of all in Scotland, with faction, with revolution, with power and emolument, with courage and devotion, and fear, and hate, and revenge, this dispute drew along with it the most glowing emotions of the heart, and the question became utterly out of the province of argument. It was very possible that episcopacy might be of apostolical institution; but for this institution houses had been burned and fields laid waste, and the Gospel had been preached in wildernesses, and its ministers had been shot in their prayers, and husbands had been murdered before their wives, and virgins had been defiled, and many had died by the executioner, and by massacre, and in imprisonment, and in exile and slavery, and women had been tied to stakes on the sea-shore till the tide rose to overflow them, and some had been tortured and mutilated: it was a religion of the boots and the thumb-screw, which a good man must be very cool-blooded indeed if he did not hate and reject from the hands which offered it. For, after all, it is much more certain that the Supreme Being abhors cruelty and persecution, than that he has set up bishops to have a superiority over presbyters. It was, however, a serious problem at that time, whether the presbyterian church, so proud and stubborn as she had formerly shown herself, could be brought under a necessary subordination to the civil magistrate, and whether the more fanatical part of it, whom Cargill and Cameron had led on, would fall again into the ranks of social life. But here experience victoriously confuted these plausible apprehensions. It was soon perceived that the insanity of fanaticism subsides

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320 CONVENTION OF ESTATES. CHAP. XVII. of itself, unless purposely heightened by persecution. The fiercer spirit of the sectaries was allayed by degrees; and, though vestiges of it may probably still be perceptible by observers, it has never, in a political sense, led to dangerous effects. The church of Scotland, in her general assemblies, preserves the forms and affects the language of the sixteenth century; but the Erastianism, against which she inveighs, secretly controls and paralyzes her vaunted liberties; and she cannot but acknowledge that the supremacy of the legislature is like the collar of the watch-dog, the price of food and shelter, and the condition upon which alone a religious society can be endowed and established by any prudent commonwealth.l The judicious admixture of laymen in these assemblies, and, in a far greater degree, the perpetual intercourse with England, which has put an end to everything like sectarian bigotry and even exclusive communion in the higher and middling classes, are the principal causes of that remarkable moderation which for many years has characterized the successors of Knox and Melville. [1827.] The convention of estates was turned by an act of its own into a parliament, and continued to sit during’the king’s reign. This, which was rather contrary to the spirit of a representative government than to the Scots constitution, might be justified by the very unquiet state of the kingdom and the intrigues of the jacobites. Many excellent statutes were enacted in this parliament, besides the provisions included in the declaration of rights; twenty-six members were added to the representation of the counties, the tyrannous acts of the two last reigns were repealed, the unjust attainders were reversed, the lords of articles were abolished. After some years an act was obtained against wrongous imprisonment, still more effectual perhaps in some respects than that of the habeas corpus in England. The prisoner is to be released on bail within twenty-four hours on application to a judge, unless committed on a capital charge, and in that case must be brought to trial within sixty days. A judge refusing to 1 The practice observed in summoning the same authority, appoints another to or dissolving the great national assembly meet on a certain day of the ensuing of the church of Scotland, which, accord-year. The lord high commissioner then ing to the presbyterian theory, can only dissolves the assembly in the name of the be done by its own authority, is rather king and appoints another to meet on amusing: “

The moderator dissolves the the same day.” Arnot’s Hist. of Edin., assembly in the name of the Lord Jesus p. 269. Christ, the head of the church; and, by

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SCOTLAND. MASSACRE OF GLENCOE. 321 give full effect to the act is declared incapable of public trust. Notwithstanding these great improvements in the constitution, and the cessation of religious tyranny, the Scots are not accustomed to look back on the reign of William with much complacency. The regeneration was far from perfect; the court of session continued to be corrupt and partial; severe and illegal proceedings might sometimes be imputed to the council; and in one lamentable instance, the massacre of the Macdonalds in Glencoe, the deliberate crime of some statesmen tarnished not slightly the bright fame of their deceived master; though it was not for the adherents of the house of Stuart, under whom so many deeds of more extensive slaughter had been perpetrated, to fill Europe with their invectives against this military execution.l The episcopal clergy, driven out injuriously by the populace from their livings, were permitted after a certain time to hold them again in some instances under certain conditions; but William, perhaps almost the only consistent friend of toleration in his kingdoms, at least among public men, lost by this indulgence the affection of one party, without in the slightest degree conciliating the other.2 1 The king’s instructions by no means assurance that he held the king to be de warrant the execution, especially with facto et de jure, and also the confession all its circumstances of cruelty, but they of faith; and that he owns and acknowlcontain one unfortunate sentence: ” If edges presbyterian church government Maclean [sic] of Glencoe, and that tribe to be the only government of this church, can be well separated from the rest, it and that he will submit thereto and conwill be a proper vindication of the public cur therewith, and will never endeavor, justice to extirpate that seat of thieves.” directly or indirectly, the prejudice or This was written, it is to be remembered, subversion thereof. Id. 715; Laing, iv. while they were exposed to the penalties 255. of the law for the rebellion. But the This act seems not to have been strictmassacre would never have been perpe-ly insisted upon; and the episcopal clertrated, if lord Breadalbane and the mas-gy, though their advocates did not forter of Stair, two of the worst men in Scot-get to raise a cry of persecution, which land, had not used the foulest arts to was believed in England, are said to have effect it. It is an apparently great re-been treated with singular favor. De Foe proach to the government of William challenges them to show any one ministhat they escaped with impunity; but ter that ever was deposed for not acknowlpolitical necessity bears down justice and edging the church, if at the same time honor. Laing, iv. 246; Carstares’ State he offered to acknowledge the government Papers. and take the oaths; and says they have 2 Those who took the oaths were al-been often challenged on this head.

Hist. lowed to continue in their churches with-of Church of Scotland, p.

319. In fact, out compliance with the presbyterian a statute was passed in 1695, which condiscipline, and many more who not only firmed all ministers who would qualify refused the oaths, but prayed openly for themselves by taking the oaths: and no James and his family. Carstares, p. 40. less than 116 (according to Laing, iv But in 1693 an act for settling the peace 259) did so continue; nay, De Foe reckand quiet of the church ordains that no ons 165 at the time of the union. P. person be admitted or continued to be a 320. minister or preacher unless he have taken The rigid presbyterians inveighed the oath of allegiance and subscribed the against any toleration, as much as they voL. In. 21

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322 ACT OF SECURITY. CHAP. XVI. The true cause, however, of the prevalent disaffection at this period was the condition of Scotland, an ancient, independent kingdom, inhabited by a proud, high-spirited people, relatively to another kingdom which they had long regarded with enmity, still with jealousy, but to which, in despite of their theoretical equality, they were kept in subordination by an insurmountable necessity.

The union of the two crowns had withdrawn their sovereign and his court; yet their government had been national, and on the whole with no great intermixture of English influence. Many reasons, however, might be given for a more complete incorporation, which had been the favorite project of James I., and was discussed, at least on the part of Scotland, by commissioners appointed in 1670. That treaty failed of making any progress - the terms proposed being such as the English parliament would never have accepted. At the Revolution a similar plan was just hinted and abandoned.

Meanwhile, the new character that the English government had assumed rendered it more difficult to preserve the actual connection. A king of both countries, especially by origin more allied to the weaker, might maintain some impartiality in his behavior towards each of them. But, if they were to be ruled, in effect, nearly as two republics; that is, if the power of their parliaments should be so much enhanced as ultimately to determine the principal measures of state (which was at least the case in England), no one who saw their mutual jealousy, rising on one side to the highest exasperation, could fail to anticipate that some great revolution must be at hand, and that an union, neither federal nor legislative, but possessing every inconvenience of both, could not long be endured. The well-known business of the Darien company must have undeceived every rational man who dreamed of any alternative but incorporation or separation. The Scots parliament took care to bring on the crisis by the act of security in 1704. It was enacted that, on the queen’s death without issue, the estates should meet to did against the king’s authority over their for the royal family, with which they own church. But the government paid never complied. It was thought neceslittle attention to their bigotry; besides sary to put them under some fresh rethe above-mentioned episcopal clergy-strictions in 1748, their zeal for the premen, those who seceded from the church, tender being notorious and universal, by though universally jacobites, and most an act 21 Geo. II. c. 34, which has very dangerously so, were indulged with meet-properly been repealed after the motive ing-houses in all towns; and by an act for it had wholly ceased, and even at of the queen, 10 Anne, c. 7, obtained a first was not reconcilable with the generfull toleration on condition of praying al principles of religious liberty.

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SCOTLAND. ACT OF SECUITY -UNION. 323 name a successor of the royal line, and a protestant; but that this should not be the same person who would succeed to the crown of England, unless during her majesty’s reign conditions should be established to secure from English influence the honor and independence of the kingdom, the authority of parliament, the religion, trade, and liberty of the nation. This was explained to mean a free intercourse with the plantations, and the benefits of the navigation act. The prerogative of declaring peace and war was to be subjected forever to the approbation of parliament, lest at any future time these conditions should be revoked. Those who obtained the act of security were partly of the Jacobite faction, who saw in it the hope of restor-Act of ing at least Scotland to the banished heir-partly security. of a very different description, whigs in principle and determined enemies of the pretender, but attached to their country, jealous of the English court, and determined to settle a legislative union on such terms as became an independent state. Such an union was now seen in England Unon to be indispensable; the treaty was soon afterwards begun, and, after a long discussion of the terms between the commissioners of both kingdoms, the incorporation took effect on the 1st of May, 1707. It is provided by the articles of this treaty, confirmed by the parliaments, that the succession of the united kingdom shall remain to the princess Sophia, and the heirs of her body, being protestants; that all privileges of trade shall belong equally to both nations; that there shall be one great seal, and the same coin, weights, and measures; that the episcopal and presbyterian churches of England and Scotland shall be forever established as essential and fundamental parts of the union; that the united kingdom shall be represented by one and the same parliament, to be called the parliament of Great Britain; that the number of peers for Scotland shall be sixteen, to be elected for every parliament by the whole body, and the number of representatives of the commons forty-five, two thirds of whom to be chosen by the counties and one third by the boroughs; that the crown be restrained from creating any.new peers of Scotland; that both parts of the united kingdom shall be subject to the same duties of excise, and the same customs on export and import; but that, when England raises two millions by a landtax, 48,0001. shall be raised in Scotland, and in like proportion.

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324 UNION. CHAP. XVII. It has not been unusual for Scotsmen, even in modern times, while they cannot but acknowledge the expediency of an union and the blessings which they have reaped from it, to speak of its conditions as less favorable than their ancestors ought to have claimed.

For this, however, there does not seem much reason. The ratio of population would indeed have given Scotland about one eighth of the legislative body, instead of something less than one twelfth; but no government, except the merest democracy, is settled on the sole basis of numbers; and if the comparison of wealth and of public contributions was to be admitted, it may be thought that a country, which stipulated for itself to pay less than one fortieth of direct taxation, was not entitled to a much greater share of the representation than it obtained. Combining the two ratios of population and property, there seems little objection to this part of the union; and in general it may be observed of the articles of that treaty, what often occurs with compacts intended to oblige future ages, that they have rather tended to throw obstacles in the way of reformations for the substantial benefit of Scotland than to protect her against encroachment and usurpation. This, however, could not be securely anticipated in the reign of Anne; and, no doubt, the measure was an experiment of such hazard, that every lover of his country must have consented in trembling, or revolted from it with disgust. No past experience of history was favorable to the absorption of a lesser state (at least where the government partook so much of the republican form) in one of superior power and ancient rivalry. The representation of Scotland in the united legislature was too feeble to give anything like security against the English prejudices and animosities, if they should continue or revive. The church was exposed to the most apparent perils, brought thus within the power of a legislature so frequently influenced by one which held her not as a sister, but rather a bastard usurper of a sister’s inheritance; and, though her permanence was guaranteed by the treaty, yet it was hard to say how far the legal competence of parliament might hereafter be deemed to extend, or at least how far she might be abridged of her privileges and impaired in her dignity.1 If very few of these mischiefs have resulted l Archbishop Tenison said, in the de-row notions of all churches had been their bates on the union, he thought the nar-ruin, and that he believed the church ot

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SCOTLAND. DECLINE OF JACOBITISM. 325 from the union, it has doubtless been owing to the prudence of our government, and chiefly to the general sense of right and the diminution both of national and religious bigotry during the last century. But it is always to be kept in mind, as the best justification of those who came into so great a sacrifice of natural patriotism, that they gave up no excellent form of polity; that the Scots constitution had never produced the people’s happiness; that their parliament was bad in its composition, and in practice little else than a factious and venal aristocracy; that they had before them the alternatives of their present condition, with the prospect of unceasing discontent, half suppressed by unceasing corruption, or of a more honorable but very precarious separation of the two kingdoms, the renewal of national wars and border-feuds, at a cost the poorer of the two could never endure, and at a hazard of ultimate conquest, which, with all her pride and bravery, the experience of the last generation had shown to be no impossible term of the contest. The union closes the story of the Scots constitution. From its own nature not more than from the gross prostitution with which a majority had sold themselves to the surrender of their own legislative existence, it was long odious to both parties in Scotland. An attempt to dissolve it by the authority of the united parliament itself was made in a very few years, and not very decently supported by the whigs against the queen’s last ministry. But, after the accession of the house of Hanover, the jacobite party displayed such strength in Scotland, that to maintain the union was evidently indispensable for the reigning family. That party comprised a large proportion of the’superior classes, and nearly the whole of the episcopal church, which, though fallen, was for some years considerable in numbers. The national prejudices ran in favor of their ancient stock of kings, conspiring with the sentiment of dishonor attached to the union itself, and jealousy of some innovations which a legislature they were unwilling to recognize thought fit to introduce. It is Gradua certain that jacobitism, in England little more after decline of the reign of George I. than an empty word, the jacobitism Scotland to be as true a protestant church jus divinum, was sure to retain many as the church of England, though be advocates, and has always done so. Forcould not say it was as perfect. Carstares, tunately for Great Britain, it has not had 759.

This sort of language was encour-the slightest effect on the laity in modern aging; but the exclusive doctrine, or times. [1827.1

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826 DECLINE OF JACOBITISM. CHAP. XVII. Vehicle of indefinite dissatisfaction in those who were never teady to encounter peril or sacrifice advantage for its affected principle, subsisted in Scotland as a vivid emotion of loyalty, a generous promptitude to act or suffer in its cause; and, even when all hope was extinct, clung to the recollections of the past long after the very name was only known by tradition, and every feeling connected with it had been wholly effaced to the south of the Tweed. It is believed that some persons in that country kept up an intercourse with Charles Edward as their sovereign till his decease in 1787. They had given, forty years before, abundant testimonies of their activity to serve him. That rebellion is, in more respects than one, disgraceful to the British government; but it furnished an opportunity for a wise measure to prevent its recurrence and to break down in some degree the aristocratical ascendency, by abolishing the hereditary jurisdictions which, according to the genius of the feudal system, were exercised by territorial proprietors under royal charter or prescription.

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IR[ELo.A ANCIENT STATE OF IRELAND. 327 CHAPTER XVIII. ON THE CONSTITUTION

OF IRELAND. Ancient State of Ireland Its Kingdoms and Chieftainships-Law of Tanistry and Gavelkind-Rude State of Society-Invasion of Henry II.-

Acquisitions of English Barons-Forms of English Constitution established-Exclusion of native Irish from them - Degeneracy of English Settlers-Parliament of Ireland -Disorderly State of the Island -The Irish regain Part of their TerritoriesEnglish Law confined to the Pale -

Poyning’s Law-Royal Authority revives under Henry VIII.-Resistance of Irish to Act of Supremacy-Protestant Church established by Elizabeth-Effects of this Measure-Rebellions of her Reign-Opposition in Parliament-Arbitrary Proceedings of Sir Henry Sidney -James I. - Laws against Catholics enforcetl-English Law established throughout Ireland -

Settlements of English in Munster, Ulster, and other Parts - Injustice attending them Constitution of Irish Parliament-Charles I. promises Graces to the Irish- -Does not confirm them -Administration of Strafford -

Rebellion of 1641-Subjugation of Irish by Cromwell - Restoration of Charles II. - Act of Settlement - Hopes of Catholics under Charles and James - War of 1689, and Final Reduction of Ireland -Penal Laws against Catholics-Dependence of Irish on English Parliament - Growth of a patriotic Party in 1753. THE antiquities of Irish history, imperfectly recorded, and rendered more obscure by controversy, seem Ancient hardly to belong to our present subject. But the state of political order or state of society among that Ireland. people at the period of Henry II.‘s invasion must be distinctly apprehended and kept in mind before we can pass a judgment upon, or even understand, the course of succeeding events, and the policy of the English government in relation to that island. It can hardly be necessary to mention (the idle traditions of a derivation from Spain having long been exploded) that the Irish are descended from one of those Celtic tribes which occupied Gaul and Britain some centuries before the Christian era. Their language, however, is so far dissimilar from that spoken in Wales, though evidently of the same root, as to render it probable that the emigration, whether from this island or from Armorica, was in a remote age; while its close resemblance to that of the Scottish Highlanders, which hardly can be called another dialect, as unequivocally demonstrates a nearer affinity of the two nations. It seems to be generally believed, though the antiquaries are far from

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328 KINGDOMS AND CHIEFTAINSHIPS. CHAP. XVIII unanimous, that the Irish are the parent tribe, and planted their colony in Scotland since the commencement of our era. About the end of the eighth century some of those swarms of Scandinavian descent which were poured out in such unceasing and irresistible multitudes on France and Britain began to settle on the coasts of Ireland. These colonists were known by the name of Ostmen, or men from the east, as in France they were called Normans from their northern origin. They occupied the sea-coast from Antrim easterly round to Limerick; and by them the principal cities of Ireland were built. They waged war for some time against the aboriginal Irish in the interior; but, though better acquainted with the arts of civilized life, their inferiority in numbers caused them to fail at length in this contention; and the piratical invasions from their brethren in Norway becoming less frequent in the eleventh and twelfth centuries, they had fallen into a state of dependence on the native princes. The island was divided into five provincial kingdoms, ki Leinster, Munster, Ulster, Connaught, and Meath; doms and one of whose sovereigns was chosen king of Irechieftin-land in some general meeting, probably of the nobility or smaller chieftains and of the prelates. But there seems to be no clear tradition as to the character of this national assembly, though some maintain it to have been triennially held. The monarch of the island had tributes from the inferior kings, and a certain supremacy, especially in the defence of the country against invasion; but the constitution was of a federal nature, and each was independent in ruling his people, or in making war on his neighbors. Below the kings were the chieftains of different septs or families, perhaps in one or two degrees of subordination, bearing a relation which may be loosely called feudal, to each other and to the crown.1 These chieftainships, and perhaps even the kingdoms Law of themselves, though not partible, followed a very tanistry, different rule of succession from that of primogeniture. They were subject to the law of tanistry, of which the principle is defined to be that the demesne lands and dignity of chieftainship descended to the eldest and most 1 Sir James Ware’s Antiquities of Ireland; Leland’s Hist. of Ireland (Intro duction); Ledwich’s Dissertations.

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IRELAND. TANISTRY -GAVELKIND. 329 worthy of the same blood; these epithets not being used, we may suppose, synonymously, but in order to indicate that the preference given to seniority was to be controlled by a due regard to desert. No better mode, it is evident, of providing for a perpetual supply of those civil quarrels in which the Irish are supposed to place so much of their enjoyment could have been devised. Yet, as these grew sometimes a little too frequent, it was not unusual to elect a tanist, or reversionary successor, in the lifetime of the reigning chief, as has been the practice of more civilized nations. An infant was never allowed to hold the sceptre of an Irish kingdom, but was necessarily postponed to his uncle or other kinsman of mature age; as was the case also in England, even after the consolidation of the Anglo-Saxon monarchy.1 The landowners who did not belong to the noble class bore the same name as their chieftain, and were and gavelpresumed to be of the same lineage. But they kind. held their estates by a very different and an extraordinary tenure, that of Irish gavelkind. On the decease of a proprietor, instead of an equal partition among his children, as in the gavelkind of English law, the chief of the sept, according to the generally received explanation, made, or was entitled to make, a fresh division of all the lands within his district; allotting to the heirs of the deceased a portion of the integral territory along with the other members of the tribe. It seems impossible to conceive that these partitions were renewed on every death of one of the sept. But they are asserted to have at least taken place so frequently as to produce a continual change of possession. The policy of this custom doubtless sprung from too jealous a solicitude as to the excessive inequality of wealth, and from the habit of looking on the tribe as one family of occupants, not wholly divested of its original right by the necessary allotment of lands to particular cultivators. It bore some degree of analogy to the institution of the year of jubilee in the Mosaic code; and, what may be thought more immediate, was almost exactly similar to the rule of succession which is laid down in the ancient laws of Wales.2 1 Id. Auct.: also Davis’s Reports, 29, of Ireland under James I. The tract and his “Discovery of the True Causes just quoted is well known as a concise why Ireland was never entirely subdued and luminous exposition of the history till his Majesty’s happy Reign,” 169. Sir of that country from the English inJohn Davis, author of the philosophical vasion. poem, rTvZt leavrvp, was chief-justice 2 Ware; Leland; Ledwich; Davis’s

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330 RUDE STATE OF SOCIETY. CHAP. XVIII. In the territories of each sept, judges called Brehons, and Rude state taken out of certain families, sat with primeval of society. simplicity upon turfen benches in some conspicuous situation, to determine controversies. Their usages are almost wholly unknown; for what have been published as fragments of the Brehon law seem open to great suspicion of having at least been interpolated.1 It is notorious that, according to the custom of many states in the infancy of civilization, the Irish admitted the composition or fine for murder, instead of capital punishment; and this was divided, as in other countries, between the kindred of the slain and the judge. In the twelfth century it is evident that the Irish nation had made far less progress in the road of improvement than any other of Europe in circumstances of climate and position so little unfavorable. They had no arts that deserve the name, nor any commerce; their best line of sea-coast being occupied by the Norwegians. They had no fortified towns, nor any houses or castles of stone; the first having been erected at Tuam a very few years before the invasion of Henry.2 Their conversion to Christianity, indeed, and the Discovery, ibid.; Reports, 49. It is re-wich proves that some parts must be markable that Davis seems to have been later than the tenth century.

Dissertaaware of an analogy between the custom tions, i. 270. And others hold them to of Ireland and Vales, and yet that he be not older than the thirteenth. Camponly quotes the statute of Rutland, 12 bell’s Historical Sketch of Ireland, 41. Edw. I., which by itself does not prove It is also maintained that they are very it. It is however proved, if I understand unfaithfully translated. But, when we the passage, by one of the Leges Walliae, find the Anglo-Saxon and Norman usages, published by Wotton, p.

139. A gavel relief, aid, wardship, trial by jury (and or partition was made on the death of that unanimous), and a sort of cor. every member of a family for three gen-respondence in the ranks of society with erations, after which none could be en-those of England (which all we read elseforced. But these parceners were to be where of the ancient Irish seems to conall in the same degree; so that nephews tradict), it is impossible to resist the suscould not compel their uncle to a parti-picion that they are either extremely tion, but must wait till his death, when interpolated, or were compiled in a late they were to be put on an equality with age, and among some of the septs who their cousins; and this, I suppose, is had most intercourse with the English. meant by the expression in the statute We know that the degenerate colonists, of Rutland, - quod hsereditates rema-such as the earls of Desmond, adopted neant partibiles inter consinziles he-the Brehon law in their territories; but redes.” this would probably be with some ad1 Leland seems to favor the authen-mixture of that to which they had been ticity of the supposed Brehon laws pub-used. lished by Vallancey. Introduction, 29. 2 “

The first pile of lime and stone that The style is said to be very distinguish-ever was in Ireland was the castle of able from the Irish of the twelfth or Tuam, built in 1161 by Roderic O’Conthirteenth century, and the laws them-nor, the monarch.” Introduction to Cox’s selves to have no allusion to the settle-History of Ireland. I do not find that ment of foreigners i n Ireland, or to coined any later writer controverts this, so far as money. whence some ascribe them to the the aboriginal Irish are concerned; but eight, century. On the other hand. Led-doubtless the Norwegian Ostmen had

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IRELAND RUDE STATE OF SOCIETY. 331 multitude of cathedral and conventual churches erected throughout the island, had been the cause, and probably the sole cause, of the rise of some cities or villages with that name, such as Armagh, Cashel, and Trim. But neither the chiefs nor the people loved to be confined within their precincts, and chose rather to dwell in scattered cabins amidst the free solitude of bogs and mountains.1 As we might expect, their qualities were such as belong to man by his original nature, and which he displays in all parts of the globe where the state of society is inartificial: they were gay, generous, hospitable, ardent in attachment and hate, credulous of falsehood, prone to anger and violence, generally crafty and* cruel. With these very general attributes of a barbarous people, the Irish character was distinguished by a peculiar vivacity of imagination, an enthusiasm and impetuosity of passion, and a more than ordinary bias towards a submissive and superstitious spirit in religion. This spirit may justly be traced in a great measure to the virtues and piety of the early preachers of the Gospel in that country.

Their influence, though at this remote age, and with our imperfect knowledge, it may hardly be distinguishable amidst the licentiousness and ferocity of a rude people, was necessarily directed to counteract those vices, and cannot have failed to mitigate and compensate their evil. In the seventh and eighth centuries, while a total ignorance seemed to overspread the face of Europe, the monasteries and schools of Ireland preserved in the best manner they could such learning as had survived the revolutions of the Roman world. But the learning of monasteries had never much efficacy in dispelling the ignorance of the laity; and, indeed, even in them it had decayed long before the twelfth century. The clergy were respected and numerous, the bishops alone amounting at one time to no less than three hundred; 2 and it has been maintained by our most learned writers that they stcne churches, and it used to be thought had very few stone houses, or even reguthat some at least of the famous round lar villages and towns, before the time of towers so common in Ireland were erected James I. Davis, 170. by them, though several antiquaries have 1 [

” I dare boldly say, that never any lately contended for a much earlier origin particular person, from the conquest till of these mysterious structures. See Led-the reign of James I., did build any stone wich’s Dissertations, vii. 148; and the or brick house for his private habitation, book called Grose’s Antiquities of Ire-but such as have lately obtained estates land, also written by Ledwich. Piles of according to the course of the law of stone without mortar are not included England.” Davis.- 1845.] in Cox’s expression. In fact, the Irish 2

Ledwich, i. 895

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332 GOVERNMENT. CHAP. XVIIL were wholly independent of the see of Rome till, a little before the English invasion, one of their primates thought fit to solicit the pall from thence on his consecration, according to the discipline long practised in other western churches. It will be readily perceived that the government of Ireland must have been almost entirely aristocratical, and, though not strictly feudal, not very unlike that of the feudal confederaAies in France during the ninth and tenth centuries.

It was perhaps still more oppressive. The ancient condition of the common people of Ireland, says sir James Ware, was very little different from slavery.1 Unless we believe this condition to have been greatly deteriorated under the rule of their native chieftains after the English settlement, for which there seems no good reason, we must give little credit to the fanciful pictures of prosperity and happiness in that period of aboriginal independence which the Irish, in their discontent with later times, have been apt to draw. They had, no doubt, like all other nations, good and wise princes, as well as tyrants and usurpers. But we find by their annals that, out of two hundred ancient kings, of whom some brief memorials are recorded, not more than thirty came to a natural death; 2
while, for the later period, the oppression of the Irish chieftains, and of those degenerate English who trod in their steps, and emulated the vices they should have restrained, is the one constant theme of history.

Their exactions kept the peasants in hopeless poverty, their tyranny in perpetual fear. The chief claimed a right of taking from his tenants provisions for his own use at discretion, or of sojourning in their houses. This was called coshery, and is somewhat analogous to the royal prerogative of purveyance. A still more terrible oppression was the quartering of the lords’ soldiers on the people, sometimes mitigated by a composition, called by the Irish bonaght.8 For the perpetual warfare of these petty chieftains had given rise to the employment of mercenary troops, partly natives, partly from Scotland, known by the uncouth names of Kerns and Gallowglasses, who proved the scourge of Ireland down to its final subjugation by Elizabeth. This unusually backward condition of society furnished but an inauspicious presage for the future. Yet we may be led by the analogy of other countries to think it probable tlat, I Antiquities of Ireland, ii. 76. 3 Ware. ii. 74; Davis’s Discovery, 174 s Ledwich, i. 260. Spencer’s State of Ireland, 390.

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RELAND. INVASION OF HENRY II. 333 if Ireland had not tempted the cupidity of her neighbors, there would have arisen in the course of time some Egbert or Harold Harfager to consolidate the provincial kingdoms into one hereditary monarchy; which, by the adoption of better laws, the increase of commerce, and a frequent intercourse with the chief courts of Europe, might have taken as respectable a station as that of Scotland in the commonwealth of Christendom. If the two islands had afterwards become incorporated through intermarriage of their sovereigns, as would very likely have taken place, it might have been on such conditions of equality as Ireland, till lately, has never known; and certainly without that long tragedy of crime and misfortune which her annals unfold. The reduction of Ireland, at least in name, under the dominion of Henry II. was not achieved by his own Invasion of efforts. He had little share in it, beyond receiv-Henry II ing the homage of Irish princes, and granting charters to his English nobility. Strongbow, Lacy, Fitz-Stephen, were the real conquerors, through whom alone any portion of Irish territory was gained by arms or treaty; and, as they began the enterprise without the king, they carried it on also for themselves, deeming their swords a better security than his charters. This ought to be kept in mind, as revealing the secret of the English government over Ireland, and furnishing a justification for what has the appearance of a negligent abandonment of its authority. The few barons, and other adventurers, who, by dint of forces tions of hired by themselves, and, in some instances, by English conventions with the Irish, settled their armedarons. colonies in the island, thought they had done much for Henry II. in causing his name to be acknowledged, his administration to be established in Dublin, and in holding their lands by his grant. They claimed in their turn, according to the practice of all nations and the principles of equity, that those who had borne the heat of the battle should enjoy the spoil without molestation. Hence, the enormous grants of Henry and his successors, though so often censured for impolicy, were probably what they could not have retained in their own hands; and, though not perhaps absolutely stipulated as the price of titular sovereignty, were something very like it.1 But what is to be censured, and 1 Davis, 135.

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;34 FORMS OF ENGLISH CHAP. XYVII what at all hazards they were bound to refuse, was the violation of their faith to the Irish princes, in sharing among these insatiable barons their ancient territories; which, setting aside the wrong of the first invasion, were protected by their homage and submission, and sometimes by positive conventions. The whole island, in fact, with the exception of the county of Dublin and the maritime towns, was divided, before the end of the thirteenth century, and most of it in the twelfth, among ten English families: earl Strongbow, who had some color of hereditary title, according to our notions of law, by his marriage with the daughter of Dermot, king of Leinster, obtaining a grant of that province; Lacy acquiring Meath, which was not reckoned a part of Leinster, in the same manner; the whole of Ulster being given to De Courcy; the whole of Connaught to De Burgh; and the rest to six others.

These, it must be understood, they were to hold in a sort of feudal suzerainty, parcelling them among their tenants of English race, and expelling the natives, or driving them into the worst parts of the country by an incessant warfare. The Irish chieftains, though compelled to show some exterior signs of submission to Henry, never thought Forms of.

English of renouncing their own authority, or the customs constitution of their forefathers; nor did he pretend to interfcre with the government of their septs, content with their promise of homage and tribute, neither of which were afterwards paid. But in those parts of Ireland which he reckoned his own, it was his aim to establish the English laws, to render the lesser island, as it were, a counterpart in all its civil constitution, and mirror of the greater. The colony from England was already not inconsiderable, and likely to increase; the Ostmen, who inhabited the maritime towns, came very willingly, as all settlers of Teutonic origin have done, into the English customs and language; and upon this basis, leaving the accession of the aboriginal people to future contingencies, he raised the edifice of the Irish constitution. He gave charters of privilege to the chief towns, began a division into counties, appointed sheriffs and judges of assize to administer justice, erected supreme courts at Dublin, and perhaps assembled parliaments.1 His successors pursued the same course of policy; the great charter of lib1

Leland, 80 et post. Davis, 100

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IRELAND. CONSTITUTION ESTABLISHED. 335 erties, as soon as granted by John at Runnymede, was sent over to Ireland; and the whole common law, with all its forms of process, and every privilege it was deemed to convey, became the birthright of the AngloIrish colonists.1 These had now spread over a considerable part of the island. Twelve counties appear to have been established by John, comprehending most of Leinster and Munster; while the two ambitious families of Courcy and De Burgh encroached more and more on the natives in the other provinces.2 But the same necessity, which gratitude for the services or sense of the power of the great families had engendered, for rewarding them by excessive grants of territory, led to other concessions that rendered them almost independent of the monarchy.8

The franchise of a county palatine gave a right of exclusive civil and criminal jurisdiction; so that the king’s writ should not run, nor his judges come within it, though judgment in its courts might be reversed by writ of error in the king’s bench. The lord might enfeoff tenants to hold by knight’s service of himself; he had almost all regalian rights; the lands of those attainted for treason escheated to him; he acted in everything rather as one of the great feudatories of France or Germany than a subject of the English crown. Such had been the earl of Chester, and only Chester, in England; but in Ireland this dangerouz independence was permitted to Strongbow in Leinster, to Lacy in Meath, and at a later time to the Butlers and Geraldines in parts of Munster. Strongbow’s vast inheritance soon fell to five sisters, who took to their shares, with the same palatine rights, the counties of Carlow, Wexford, Kilkenny, Kildare, and the district of Leix, since called the Queen’s County.4 In all these palatinates, forming by far the greater portion of the English territories, the king’s proc1 4 Inst. 349. Leland, 203. Harris’s the authority of the king at no time exHibernica, ii. 14. tended beyond the pale; whereas that 2 These counties are Dublin, Kildare, name was not known, I believe, till the Meath (including Westmeath), Louth, fifteenth century. Under the great earl Carlow, Wexford, Kilkenny, Waterford, of Pembroke, who died in 1219, the whole Cork, Tipperary. Kerry, and Limerick. island was perhaps nearly as much reIn the reign of Edward I. we find sheriffs duced under obedience as in the reign of also of Connaught and Roscommon. Le-Elizabeth. Leland, 205. land, i. 19. Thus, except the northern 3 Leland. 170. province, and some of the central dis-4 Davis, 140. William Marischal, earl tricts, all Ireland was shire-ground and of Pembroke, who married the daughter subject to the crown in the thirteenth of earl Strongbow, left five sons and five century, however it might fall away in daughters; the first all died without the two next. Those who write con-issue. fusedly about this subject pretend that

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336 EXCLUSION OF NATIVE IRISH CHAP. XVIII. ess had its course only within the lands belonging to the church.1 The English aristocracy of Ireland, in the thirteenth and fourteenth centuries, bears a much closer analogy to that of France in rather an earlier period than anything which the history of this island can show. Pressed by the inroads of these barons, and despoiled frequently of lands secured to them by grant or treaty, the native chiefs had recourse to the throne for protection, and would in all likelihood have submitted without repining to a sovereign who could have afforded it.2 But John and Henry III., in whose reigns the independence of the aristocracy was almost complete, though insisting by writs and proclamations on a due observance of the laws, could do little more for their new subjects, who found a better chance of redress in standing on their own defence. The powerful septs of the north enjoyed their liberty.

But those of Munster and Leinster, intermixed with the English, and encroached upon from every side, were the victims of constant injustice; and abandoning the open country for bog and mountain pasture, grew more poor and barbarous in the midst of the general advance of Europe. Many remained under the yoke of English lords, and in a worse state than that of villenage, because still less protected by the tribunals of justice.

The Irish had originally stipulated with Henry II. for the use of native of their own laws.8 They were consequently held Irshfrom beyond the pale of English justice, and regarded as aliens at the best, sometimes as enemies, in our courts. Thus, as by the Brehon customs murder was only punished by a fine, it was not held felony to kill one of Irish race, unless he had conformed to the English law.4 1 Davis, 147. Leland, 291.

Johannis, cujus Hibernicus idem Johan2 Id. 194, 209. nes fuit, die quo interfectus fuit, solus Leland. 225. tionem pro ipso Johanne Hibernico suo 4 Davis, 100, 109. He quotes the fol-sic interfecto petere voluerit, ipse Rolowing record from an assize at Water-bertus paratus erit ad respondendum de ford, in the 4th of Edward II. (1311), solutione prasdicta prout justitia suawhich may be extracted as briefly illus-debit. Et super hoc venit quidam Jotrating the state of law in Ireland better hannes le Poer, et dicit pro domino rege, than any general positions. “Quod Ro-quod praedictus Johannes filius Ivor bertus le Wayleys rectatus de morte Jo-Mac-Gillemory, et antecessores sui de hannis filii Ivor Mac-Gillemory, felonice cognomine praedicto a tempore quo domper ipsum interfecti, &c.

Venit et bene inus Henricus filius imperatricis, quoncognovit quod praedictum Johannem in-dam dominus Hiberniae, tritavus domini terfecit; dicit tamen quod per ejus inter-regis nunc, fuit in Hibernia, legem Anfectionem feloniam committere non pot-glicanam in Hibernia usque ad hanc diem uit, quia dicit, quod prsedictus Johannes habere, et secundum ipsam legem judicari fuit purus Hibernicus, et non de libero et deduci debent.” We have here both sanguine, &c. Et cum dominus dicti the general rule, that the death of an

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IRELAND. FROM FORMS OF ENGLISH LAW. 337 Five septs, to which the royal families of Ireland belonged. the names of O’Neal, O’Connor, O’Brien, O’Malachlin, and Mac Murrough, had the special immunity of being within the protection of our law, and it was felony to kill one of them. I do not know by what means they obtained this privilege; for some of these were certainly as far from the king’s obedience as any in Ireland.1 But besides these a vast number of charters of denizatinn were granted to particular persons of Irish descent from tme reign of Henry II. downwards, which gave them and their posterity the full birthrights of English subjects; nor does there seem to have been any difficulty in procuring these.2 It cannot be said, therefore, that the English government, or those who represented it in Dublin, displayed any reluctance to emancipate the Irish from thraldom. Whatever obstruction might be interposed to this was from that assembly whose concurrence was necessary to every general measure, the AngloIrish parliament. Thus, in 1278, we find the first instance of an application from the community of Ireland, as it is termed, but probably from some small number of septs dwelling among the colony, that they might be admitted to live by the English law, and offering 8000 marks for this favor. The letter of Edward I. to the judiciary of Ireland on this is sufficiently characteristic both of his wisdom and his rapaciousness. He is satisfied of the expediency of granting the request, provided it can be done with the general consent of the prelates and nobles of Ireland; and directs the justiciary, if he can obtain that concurrence, to agree with the petitioners for the highest fine he can obtain, and for a body of good and stout soldiers.8 But this necessary consent of the aristocracy was withheld. Excuses were made to evade the king’s desire. It was wholly incompatible with their systematic encroachments on their Irish neighbors to give them the safeguard of the king’s writ for their possessions. The Irish renewed their supplication more than once, both to Edward I. and Edward III.; they found the same readiness in the English court; they sunk at Irishman was only punishable by a corn-2 Davis, 106. ” If I should collect out position to his lord, and the exception in of the records all the charters of this behalf of those natives who had con-kind, I should make a volume thereof.” formed to the English law. They began as early as the reign of Henry 1 Davis, 104; Leland, 82. It was ne-III. Leland, 225.

cessary to plead in bar of an action, that 3 Leland, 243. the plaintiff was Hibernicus, et non de quinque sanguinibus. VOL. III. 22

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338 DEGENERACY OF ENGLISH SETTLERS. CHAP. XVIII. home through the same unconquerable oligarchy.1 It is not to be imagined that the entire Irishry partook in this desire of renouncing their ancient customs. Besides the prejudices of nationality, there was a strong inducement to preserve the Brehon laws of tanistry, which suited better a warlike tribe than the hereditary succession of England. But it was the unequivocal duty of the legislature to avail itself of every token of voluntary submission; which, though beginning only with the subject septs of Leinster, would gradually incorporate the whole nation in a common bond of coequal privileges with their conquerors. Meanwhile, these conquerors were themselves brought Degeneracy under a moral captivity of the most disgraceful of English nature; and, not as the rough soldier of Rome is settlers. said to have been subdued by the art and learning of Greece, the Anglo-Norman barons, that had wrested Ireland from the native possessors, fell into their barbarous usages, and emulated the vices of the vanquished. This degeneracy of the English settlers began very soon, and continued to increase for several ages. They intermarried with the Irish; they connected themselves with them by the national custom of fostering, which formed an artificial relationship of the strictest nature; 2 they spoke the Irish language; they affected the Irish dress and manner of wearing the hair;8 I Leland, 289. or compaternity, which though by the 2 4” There were two other customs, canon law it be a spiritual affinity, and a proper and peculiar to the Irishry, which, juror that was gossip to either of the being the cause of many strong combina-parties might in former times have been tions and factions, do tend to the utter challenged, as not indifferent, by our ruin of a commonwealth. The one was law, yet there was no nation under the fostering, the other gossipred; both sun that over made so religious an acwhich have ever been of greater estima-count of it as the Irish.” Davis, 179. tion among this people than with any 3 For that now there is no diversity in other nation in the Christian world. For array between the English marchers and fostering, I did never hear or read that it the Irish enemies, and so by color of the was in that use or reputation in any English marchers, the Irish enemies do other country, barbarous or civil, as it come from day to day into the English hath been, and yet is, in Ireland, where counties as English marchers, and do rob they put away all their children to foster-and kill by the highways, and destroy ers; the potent and rich men selling, the the common people by lodging upon them meaner sort buying, the alterage and in the nights, and also do kill the husnursing of their children; and the reason bands in the nights and do take their is, because, in the opinion of this people, goods to the Irish men; wherefore it is fostering hath always been a stronger ordained and agreed, that no manner alliance than blood; and the foster-chil- man that will be taken for an Englishman dren do love and are beloved by their fos-shall have no beard above his mouth; ter-fathers and their sept more than of that is to say, that he have no hairs upon their own natural parents and kindred, his upper lip, so that the said lip be once and do participate of their means more at least shaven every fortnight, or of frankly, and do adhere to them in all equal growth with the nether lip. And fortunes with more affection and con-if any man be found among the English stancy. The like may be said of gossipred contrary hereunto. that then it shall be

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IRELAND. PARLIAMENT OF IRELAND. 339 they even adopted, in some instances, Irish surnames; they harassed their tenants with every Irish exaction and tyranny; they administered Irish law, if any at all; they became chieftains rather than peers; and neither regarded the king’s summons to his parliaments, nor paid any obedience to his judges.1 Thus the great family of De Burgh or Burke, in Connaught, fell off almost entirely from subjection; nor was that of the earls of Desmond, a younger branch of the house of Geraldine or Fitzgerald, much less independent of the crown; though by the title it enjoyed, and the palatine franchises granted to it by Edward III. over the counties of Limerick and Kerry, it seemed to keep up more show of English allegiance. The regular constitution of Ireland was, as I have said, as nearly as possible a counterpart of that established in this country. The administration was vested in an English justiciary or lord deputy, assisted by a council of judges and principal officers, mixed with some prelates and barons, but subordinate to that of England, wherein sat the immediate advisers of the sovereign. The courts of chancery, king’s bench, common pleas, and exchequer, were the same in both countries; but writs of error lay from judgments given in the second of these to the same court in England. Foi all momentous purposes, as to grant a subsidy, or enact a statute, it was as necessary to summon a parliament in the one island as in the other. An Irish parliament originally, Parliament like an English one, was but a more numerous of Ireland. council, to which the more distant as well as the neighboring barons were summoned, whose consent, though dispensed with in ordinary acts of state, was both the pledge and the condition of their obedience to legislative provisions. Not long after 1295, the sheriff of each county and liberty is directed to return two knights to a parliament held by Wogan, an active and able deputy.2 The date of the admission of burgesses cannot be fixed with precision; but it was probably not earlier than the reign of Edward III. They appear in lawful to every man to take them and 1295. Archbishop Usher, however (in their goods as Irish enemies, and to ran-Collectanea Curiosa, vol. i. p. 36), says som them as Irish enemies.”

Irish Stat-that there had been a parliament as early utes, 25 H. VI., c.

4. as 48 H. III. (1264). Usher makes a dis1 Davis, 152, 182; Leland, i.

256, &c. tinction between small and great parliaWare, ii. 58. ments, calling the former rather parlies. 2 Leland, 253. [The precise year is not -1845.] mentioned, but Wogan became deputy in

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340 PARLIAMENT OF IRELAND. CHAP. XVIII 1341; and the earl of Desmond summoned many deputies from corporations to his rebel convention held at Kilkenny in the next year.l The commons are mentioned as an essential part of parliament in an ordinance of 1359; before which time, in the opinion of lord Coke, ” the conventions in Ireland were not so much parliaments as assemblies of great men.” 2 This, as appears, is not strictly correct; but in substance they were perhaps little else long afterwards. The earliest statutes on record are of the year 1310; and from that year they are lost till 1429, though we know many parliaments to have been held in the mean time, and are acquainted by other means with their provisions. Those of 1310 bear witness to the degeneracy of the English lords, and to the laudable zeal of a feeble government for the reformation of their abuses.

They begin with an act to restrain great lords from taking of prizes, lodging, and sojourning with the people of the country against their will.

“It is agreed and assented,” the act proceeds, ” that no such prizes shall be henceforth made without ready payment and agreement, and that none shall harbor or sojourn at the house of any other by such malice against the consent of him which is owner of the house to destroy his goods; and if any shall do the same, such prizes, and such manner of destruction, shall be holden for open robbery, and the king shall have the suit thereof, if others will not, nor dare not sue. It is agreed also that none shall keep idle people nor kearn (foot soldiers) in time of peace to live upon the poor of the country, but that those which will have them shall keep them at their own charges, so that their free tenants, nor farmers, nor other tenants be not charged with them.” The statute proceeds to restrain great lords or others, except such as have royal franchises, from giving protections, which they used to compel the people to purchase; and directs that there shall be commissions of assize and jaildelivery through all the counties of Ireland.8 These regulations exhibit a picture of Irish miseries. The barbarous practices of coshering and bonaght, the latter of which was generally known in later times by the name of 1 Cox’s Hist. of Ireland, 117,120. summoned to Kilkenny, were mayors, 2 Id. 125, 129; Leland, 313. [It may rather than representatives. Usher, ibid. be probably thought that the majores -1845.] civitatum regalium, whom Desmond 3 Irish Statutes.

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IRELAND. DISORDERLY STATE. 341 coyne and livery, had been borrowed from those native chieftains whom our modern Hibernians sometimes hold forth as the paternal benefactors of their country.1 It was the crime of the Geraldines and the De Courcys to have retrograded front the comparative humanity and justice of England, not to have deprived the people of freedom and happiness they had never known. These degenerate English, an epithet by which they are always distinguished, paid no regard to the statutes of a parliament which they had disdained to attend, and which could not render itself feared. We find many similar laws in the fifteenth century, after the interval which J have noticed in the printed records.

And in the intervening period, a parliament held by Lionel duke of Clarence, second son of Edward III., at Kilkenny, in 1367, the most numerous assembly that had ever met in Ireland, was prevailed upon to pass a very severe statute against the insubordinate and degenerate colonists.

It recites that the English of the realm of Ireland were become mere Irish in their language, names, apparel, and manner of living, that they had rejected the English laws, and allied themselves by intermarriage with the Irish. It prohibits under the penalties of hightreason, or at least of forfeiture of lands, all these approximations to the native inhabitants, as well as the connections of fostering and gossipred. The English are restrained from permitting the Irish to graze their lands, from presenting them to benefices, or receiving them into religious houses, and from entertaining their bards. On the other hand, they are forbidden to make war upon their Irish neighbors without the authority of the state. And, to enforce better these provisions, the king’s sheriffs are empowered to enter all franchises for the apprehension of felons or traitors.2 This statute, like all others passed in Ireland, so Disorderly far from pretending to bind the Irish, regarded state of i i n i i ~ 11 the island. them not only as out of the king’s allegiance, tislan 1 Davis, 174, 189; Leland, 281. Maur-fall back again till the war of the Roses ice Fitz-Thomas, earl of Desmond, was About this time Edward III. endeavored the first of the English, according to to supersede the domestic legislature by Ware, ii. 76, who imposed the exaction causing the AngloIrish to attend his of coyne and livery, parliament at Westminster; and suc2 Irish Statutes; Davis, 202; Cox; Le-ceeded so far that, in 1375, not only prelland. [The statute of Kilkenny, though ates and peers, but proctors of the clergy, Leland, i. 329, says that Edward was knights, and even burgesses from nine obliged to relax it in some particulars, as towns, actually sat there. But this was incapable of being enforced,, restored the too much against the temper of the Irish English government for a time, if we may to be repeated. Leland, i. 327, 363.believe Davis, p 222, so that it did not 1845.]

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342 IRISH REGAIN TERRITORIES. CHAP. XVIII but as perpetually hostile to his government. They were generally denominated the Irish enemy. This doubtless was not according to the policy of Henry II., nor of the English government a considerable time after his reign. Nor can it be said to be the fact, though from some confusion of times the assertion is often made, that the island was not subject, in a general sense, to that prince and to the three next kings of England. The English were settled in every province; an imperfect division of counties and administration of justice subsisted; and even the Irish chieftains, though ruling their septs by the Brehon law, do not appear in that period to have refused the acknowledgment of the king’s sovereignty. But, compelled to defend their lands against perpetual aggression, they justly renounced all allegiance to a government which could not redeem the original wrong of its usurpation by the benefits of protection. They became gradually stronger; they regained part of their lost territoregin part ries; and after the era of 1315, when Edward oftheiri Bruce invaded the kingdom with a Scots army, and, though ultimately defeated, threw the government into a disorder from which it never recovered, their progress was so rapid, that in the space of thirty or forty years the northern provinces, and even part of the southern, were entirely lost to the crown of England.1 It is unnecessary in so brief a sketch to follow the unprofitable annals of Ireland in the fourteenth and fifteenth centuries. Amidst the usual variations of war, the English interests were continually losing ground. Once only Richard II. appeared with a very powerful army, and the princes of Ireland crowded round his throne to offer homage.2 But, upon his leaving the kingdom, they returned of course to their former independence and hostility. The long civil wars of England in the next century consummated the ruin of its power over the sister island. The Irish possessed all Ulster, and shared Connaught with the degenerate Burkes. The sept of O’Brien held their own district of Thomond, now the county of Clare. A considerable part of Leinster was occupied by other independent tribes; while in the south, the earls of Desmond, lords either by property or territorial ju1 Leland, i.

278, 296, 324; Davis, 152, been seventy-five in number; but the in197.

solence of the courtiers, who ridiculed an 2 Leland, 842. The native chieftains unusual dress and appearance, disgusted who came to Dublin are said to have them.

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IRELAND. ENGLISH LAW CONFINED TO PALE. 343 risdiction of the counties of Kerry and Limerick, and in some measure those of Cork and Waterford, united the turbulence of English barons with the savage manners of Irish chieftains; ready to assume either character as best suited their rapacity and ambition; reckless of the king’s laws or his commands, but not venturing, nor, upon the whole probably, wishing, to cast off the name of his subjects.1 The elder branch of their house, the earls of Kildare, and another illustrious family, the Butlers, earls of Ormond, were apparently more steady in their obedience to the crown; yet, in the great franchises of the latter, comprising the counties of Kilkenny and Tipperary, the king’s writ had no course; nor did he exercise any civil or military authority but by the permission of this mighty peer.2 Thus in the reign of Henry VII., when the English authority over Ireland had English law reached its lowest point, it was, with the exception confined to of a very few seaports, to all intents confined to the pale. the four counties of the English pale, a name not older perhaps than the preceding century; those of Dublin, Louth, Kildare, and Meath, the latter of which at that time included West Meath. But even in these there were extensive marches, or frontier districts, the inhabitants of which were hardly distinguishable from the Irish, and paid them a tribute called black-rent; so that the real supremacy of the English laws was not probably established beyond the two first of these counties, from Dublin to Dundalk on the coast, and for about thirty miles inland.3 From this time, however, we are to date its gradual recovery. The more steady counsels and firmer prerogative of the Tudor kings left little chance of escape from their authority, either for rebellious peers of English race, or the barbarous chieftains of Ireland. 1 [It appears by the rates paid to a English pale within the counties of Dubsubsidy granted in 1420, that most of lin and Meath, and Uriel [Louth], which Leinster, with a small part of Munster, pass not thirty or forty miles in cornstill contributed. Cox, 152.-1845.]

pass.” He afterwards includes Kildare. 2 Davis, 193. The English were also expelled from 3 Leland, ii. 822 et post; Davis, 199, Munster, except the walled towns. The 229, 233; Hollingshed’s Chronicles of king had no profit from Ulster but the Ireland, p. 4. Finglas, a baron of the manor of Carlingford, nor any from Con  exchequer in the reign of Henry VIII., naught. This treatise, written about in his Breviate of Ireland, from which 1530, is printed in Harris’s Hibernica. Davis has taken great part of his mate-The proofs that, in this age, the English rials, says expressly, that lby the disobe-law and government were confined to the *dienceof the Geraldines and Butlers, and four shires are abundant. It is even, their Irish connections, ” the whole land mentioned in a statute, 13

H. VIII., c. 2. is now of Irish rule. except the little

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344 POLICY OF ENGLISH KINGS. CHAP. XVIII. I must pause at this place to observe that we shall hardly find in the foregoing sketch of Irish history, during the period of the Plantagenet dynasty (nor am I conscious of having concealed anything essential), that systematic oppression and misrule which is every day imputed to the English nation and its government. The policy of our kings appears to have generally been wise and beneficent; but it is duly to be remembered that those very limitations of their prerogative which constitute liberty, must occasionally obstruct the execution of the best purposes; and that the coordinate powers of parliament, so justly our boast, may readily become the screen of private tyranny and inveterate abuse. This incapacity of doing good as well as harm has produced, comparatively speaking, little mischief in Great Britain; where the aristocratical element of the constitution is neither so predominant, nor so much in opposition to the general interest, as it may be deemed to have been in Ireland. But it is manifestly absurd to charge the Edwards and Henrys, or those to whom their authority was delegated at Dublin, with the crimes they vainly endeavored to chastise; much more to erect either the wild barbarians of the north, the O’Neals and O’Connors, or the degenerate houses of Burke and Fitzgerald, into patriot assertors of their country’s welfare. The laws and liberties of England were the best inheritance to which Ireland could attain; the sovereignty of the English crown her only shield against native or foreign tyranny. It was her calamity that these advantages were long withheld; but the blame can never fall upon the government of this island. In the contest between the houses of York and Lancaster, most of the English colony in Ireland had attached themselves to the fortunes of the White Rose; they even espoused the two pretenders, who put in jeopardy the crown of Henry VII.; and thus became of course obnoxious to his jealousy, though he was politic enough to forgive in appearance their disaffection. But as Ireland had for a considerable time rather served the purposes of rebellious invaders than of the English monarchy, it was necessary to make her subjection, at least so far as the settlers of the pale were concerned, more than a word. This produced the Poyning’s famous statute of Drogheda, in 1495, known by law. the name of Poyning’s law, from the lord dep

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IRELAND. POYNING’S LAW. 345 uty through whose vigor and prudence it was enacted. It contains a variety of provisions to restrain the lawlessness of the AngloIrish within the pale (for to no others could it immediately extend), and to confirm the royal sovereignty. All private hostilities without the deputy’s license were declared illegal; but to excite the Irish to war was made hightreason. Murders were to be prosecuted according to law, and not in the manner of the natives, by pillaging, or exacting a fine from the sept of the slayer. The citizens or freemen of towns were prohibited from receiving wages or becoming retainers of lords and gentlemen; and, to prevent the ascendency of the latter class, none who had not served apprenticeships were to be admitted as aldermen or freemen of corporations. The requisitions of coyne and livery, which had subsisted in spite of the statutes of Kilkenny, were again forbidden, and those statutes were renewed and confirmed. The principal officers of state and the judges were to hold their patents during pleasure, ” because of the great inconveniences that had followed from their being for term of life, to the king’s grievous displeasure.” A still more important provision, in its permanent consequence, was made, by enacting that all statutes lately made in England be deemed good and effectual in Ireland.’ It has been remarked that the same had been done by an Irish act of Edward IV. Some question might also be made, whether the word “lately” was not intended to limit this acceptation of English law. But in effect this enactment has made an epoch in Irish jurisprudence; all statutes made in England prior to the eighteenth year of Henry VII. being held equally valid in Ireland, while none of later date have any operation, unless specially adopted by its parliament; so that the law of the two countries has begun to diverge from that time, and after three centuries has been in several respects differently modified. But even these articles of Poyning’s law are less moment 1 [It had been common to extend the III. a question was debated in the exoperation of English statutes to Ireland, chequer chamber, ” Si villae corporatre in even when not particularly named, if the Hibernia et alii habitantes in Hibernia judges thought that the subject was suf-erurt ligati per statutum factum in Angficiently general to require it; as in the lia.” And this was resolved affirmativestatute of Merchants, 13 E. I.; the stat-ly by a majority of the English judges, ute Westminster 2, the same year; and though some differed. Uaher, in Collec many others under Edward II. and Ed-tanea Curiosa, p. 29; citing Fitzherbert ward III. But ia the reign of Richard and Broke. - 1845.]

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346 REVIVAL OF ROYAL AUTHORITY. CHAP. XVIII. ous than one by which it is peculiarly known. It is enacted that no parliament shall in future be holden in Ireland till the king’s lieutenant shall certify to the king, under the great seal, the causes and considerations, and all such acts as it seems to them ought to be passed thereon, and such be affirmed by the king and his council, and his license to hold a parliament be obtained.

Any parliament holden contrary to this form and provision should be deemed void. Thus by securing the initiative power to the English council, a bridle was placed in the mouths of every Irish parliament. It is probable also that it was designed as a check on the lorddeputies, sometimes powerful Irish nobles, whom it was dangerous not to employ, but still more dangerous to trust. Whatever might be its motives, it proved in course of time the great means of preserving the subordination of an island, which, from the similarity of constitution, and the high spirit of its inhabitants, was constantly panting for an independence which her more powerful neighbor neither desired nor dared to concede.l No subjects of the crown in Ireland enjoyed such influence at this time as the earls of Kildare, whose possesRoyal authority re-sions lying chiefly within the pale, they did not vives under affect an ostensible independence, but generally kept in their hands the chief authority of government, though it was the policy of the English court, in its state of weakness, to balance them in some measure by the rival family of Butler. But the self-confidence with which this exaltation inspired the chief of the former house laid him open to the vengeance of Henry VIII.; he affected, while lord-deputy, to be surrounded by Irish lords, to assume their wild manners, and to intermarry his daughters with their race. The councillors of English birth or origin dreaded this suspicious approximation to their hereditary enemies; and Kildare, on their complaint, was compelled to obey his sovereign’s order by repairing to London. He was committed to the Tower: on a premature report that he had suffered death, his son, a young man to whom he had delegated the administration, took up arms under the rash impulse of resentment; the primate was murdered by his wild followers, but the citizens of Dublin and the reinforcement sent from England suppressed this hasty rebellion, and its 1 Irish Statutes; Davis, 230; Leland, ii. 102.

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IRELND. REVIVAL OF ROYAL AUTHORITY. 847 leader was sent a prisoner to London. Five of his uncles, some of them not concerned in the treason, perished with him on the scaffold; his father had been more fortunate in a natural death; one sole surviving child of twelve years old, who escaped to Flanders, became afterwards the stock from which the great family of the Geraldines was restored.1 The chieftains of Ireland were justly attentive to the stern and systematic despotism which began to characterize the English government, displayed, as it thus was, in the destruction of an ancient and loyal house. But their intimidation produced contrary effects; they became more ready to profess allegiance and to put: on the exterior badges of submission, but more jealous of the crown in their hearts, more resolute to preserve their independence, and to withstand any change of laws. Thus, in the latter years of Henry, after the northern Irish had been beaten by an able deputy, lord Leonard Grey, and the lordship of Ireland, the title hitherto borne by the successors of Henry II., had been raised by act of parliament to the dignity of a kingdom,2 the native chiefs came in and submitted; the earl of Desmond, almost as independent as any of the natives, attended parliament, from which his ancestors had for some ages claimed a dispensation; several peerages were conferred, some of them on the old Irish families; fresh laws were about the same time enacted to establish the English dress and language, and to keep the colonists apart from Irish intercourse;8 and after a disuse of two hundred years, the authority of government was nominally recognized throughout Munster and Connaught.4 Yet we find that these provinces were still in nearly the same condition as before; the king’s judges did not administer justice in them, the old Brehon usages continued to prevail even in the territories of the new peers, though their primogenitary succession was I Leland. must marry themselves together, so that 2 Irish Statutes, 83 H. VIII., c. 1. in effect they all for the most part must s Ibid. 28 H. VIII., c. 15, 28. The be allied together: and therefore it is enlatter act prohibits intermarriage or fos-acted that consanguinity or affinity betering with the Irish; which had indeed yond the fourth degree shall be no cause been previously restrained by other stat-of challenge on a jury.” 33 H. VIII., c. utes. In one passed five years afterward, 4. These laws were for many years of It is recited that ” the king’s English little avail, so far at least as they were subjects, by reason that they are inhab-meant to extend beyond the pale. Spenited in so little compass or circuit and ser’s SOate of Ireland, p. 384 et post. restrained by statute to marry with the 4 Leland, ii. 178, 184. Irish nation, and therefore of necessity

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348 REVIVAL OF ROYAL AUTHORITY. CHAP. XVI1 evidently incompatible with Irish tanistry. A rebellion of two septs in Leinster under Edward VI. led to a more complete reduction of their districts, called Leix and O’Fally, which in the next reign were made shireland, by the names of King’s and Queen’s county.1 But, at the accession of Elizabeth, it was manifest that an arduous struggle would ensue between law and liberty; the one too nearly allied to cool-blooded oppression, the other to ferocious barbarism. It may be presumed, as has been already said, from the analogy of other countries, that Ireland, if left to herself, would have settled in time under some one line of kings, and assumed, like Scotland, much of the feudal character, the best transitional state of a monarchy from rudeness and anarchy to civilization. And, if the right of female succession had been established, it might possibly have been united to the English crown on a juster footing, and with far less of oppression or bloodshed than actually took place. But it was too late to dream of what might have been: in the middle of the sixteenth century Ireland could have no reasonable prospect of independence; nor could that independence have been any other than the most savage liberty, perhaps another denomination of servitude. It was doubtless for the interest of that people to seek the English constitution, which, at least in theory, was entirely accorded to their country, and to press with spontaneous homage round the throne of Elizabeth. But this was not the interest of their ambitious chieftains, whether of Irish or English descent, of a Slanes O’Neil, an earl of Tyrone, an earl of Desmond. Their influence was irresistible among a nation ardently sensible to the attachments of clanship, averse to innovation, and accustomed to dread and hate a government that was chiefly known by its severities. But the unhappy alienation of Ireland from its allegiance in part of the queen’s reign would probably not have been so complete, or at least led to such permanent mischiefs, if the ancient national animosities had not been exasperated by the still more invincible prejudices of religion. 1 Ibid. ii. 189, 211; 3 and 4 P. and about or beset with divers of the king’s M. c.1 & 2. Meath had beendivided in-rebels.” Baron Finglas says, “Half to two shires, by separating the western Meath has not obeyed the king’s laws part. 34 H. VIII., c. 1.

“Forasmuch as these one hundred years or more.” the share of Methe is great and large in Breviate of Ireland, apud Harris, p. circuit, and the west part thereof laid 85.

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IRELAND. RESISTANCE TO ACT OF SUPREMACY. 349 Henry VIII. had no sooner prevailed on the lords and commons of England to renounce their spiritual sistne obedience to the Roman see, and to acknowledge of Irish his own supremacy, than, as a natural conse-to act of quence, he proceeded to establish it in Ireland. In supremacy. the former instance, many of his subjects, and even his clergy, were secretly attached to the principles of the Reformation; as many others were jealous of ecclesiastical wealth, or eager to possess it. But in Ireland the reformers had made no progress; it had been among the effects of the pernicious separation of the two races, that the Irish priests had little intercourse with their bishops, who were nominated by the king, so that their synods are commonly recited to have been holden inter Anglicos; the bishops themselves were sometimes intruded by violence, more often dispossessed by it; a total ignorance and neglect prevailed in the church; and it is even found impossible to recover the succession of names in some sees.1 In a nation so ill predisposed, it was difficult to bring about a compliance with the king’s demand of abjuring their religion: ignorant, but not indifferent, the clergy, with Cromer the primate at their head, and most of the lords and commons, in a parliament held at Dublin in 1536, resisted the act of supremacy; which was nevertheless ultimately carried by the force of government.2 Its enemies continued to withstand the new schemes of reformation, more especially in the next reign, when they went altogether to subvert the ancient faith. As it appeared dangerous to summon a parliament, the English liturgy was ordered by a royal proclamation; but Dowdall, the new primate, as stubborn an adherent of the Romish church as his predecessor, with most of the other bishops and clergy, refused obedience; and the Reformation was never legally established in the short reign 1 Leland ii. 158. and enacts that they have no right, as 2 [Ibid. 165. An act in this year, re-they “
temerariously presume, and usurp. citing that ” proctors of the clergy had edly take on themselves, to be parcel of been used and accustomed to be sum-the body, in manner claiming that withmoned and warned to be at parliament, out their assents nothing can be enacted which were never by the order of the at any parliament within this land.” law, usage, custom, or otherwise, any Irish Statutes, 28 H. VIII., c. 12. This member or parcel of the whole body of is followed by c. 13, enacting the oath of the parliament, nor have had of right supremacy; the refusal of which, by any any voice or suffrage in the same, but only person holding an office temporal or spir to be there as councillors and assistants itual, is made treason. See Gilbert’U to the same,” and proceeding to admit Treatise of the Exchequer, p. 68, for the that these proctors. ” have usually been proctors of the clergy assisting in parlia privy and consulted about laws,” asserts ment - 1845.]

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850 PROTESTANT CHURCH ESTABLISHED. CHAP. XVIII. of Edward.1 His eldest sister’s accession reversed of course what had been done, and restored tranquillity in ecclesiastical matters; for the protestants were too few to be worth persecution, nor were even those molested who fled to Ireland from the fires of Smithfield. Another scene of revolution ensued in a very few years. Elizabeth, having fixed the protestant church on a stable basis in England, sent over the earl of Sussex to hold an Irish parliament in 1560. The disposition of such an ashrotes8tanb sembly might be presumed hostile to the projected lished by reformations; but contrary to what had occurred Ezabeth. on this side of the channel, though the peers were almost uniformly for the old religion, a large majority of the bishops are said to have veered round with the times, and supported, at least by conformity and acquiescence, the creed of the English court. In the house of commons pains had been taken to secure a majority; ten only out of twenty counties, which had at that time been formed, received the writ of summons; and the number of seventy-six representatives of the AngloIrish people was made up by the towns, many of them under the influence of the crown, some perhaps containing a mixture of protestant population. The English laws of supremacy and uniformity were enacted in nearly the same words; and thus the common prayer was at once set up instead of the mass, but with a singular reservation, that in those parts of the country where the minister had no knowledge of the English language, he might read the service in Latin. All subjects were bound to attend the public worship of the church, and every other was interdicted.2 There were doubtless three arguments in favor of this compulsory establishment of the protestant church, which must have appeared so conclusive to Elizabeth and her council, that no one in that age could have disputed them without incurring, among other hazards, that of being accounted a lover of unreasonable paradoxes. The first was, that the protestant religion being true, it was the queen’s duty to take care that her subjects should follow no other; the second, 1 [The famous Ball was made bishop in great measure by his rash zeal. Leof Ossory, and insisted on being conse-land, ii. 202.

At the accession of Mary, crated according to the protestant form, those of the clergy who had taken wives though not established. He lived in a were rejected: 207. 1845.] perpetual state of annoyance, brought on 2

Leland, 224; Irish Statutes, 2 Eliz.

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IRELAND. PROTESTANT CHURCH ESTABLISHED 351 that, being an absolute monarch, or something like it, and a very wise princess, she had a better right to order what doctrine they should believe, than they could have to choose for themselves; the third, that Ireland, being as a handmaid, and a conquered country, must wait, in all important matters, on the pleasure of the greater island, and be accommodated to its revolutions. And, as it was natural that the queen and her advisers should not reject maxims which all the rest of the world entertained, merely because they were advantageous to themselves, we need not perhaps be very acrimonious in censuring the laws whereon the church of Ireland is founded. But it is still equally true that they involve a principle essentially unjust, and that they have enormously aggravated, both in the age of Elizabeth and long afterwards, the calamities and the disaffection of Ireland. An ecclesiastical establishment, that is, the endowment and privileges of a particular religious society, can have no advantages (relatively at least to the community where it exists) but its tendency to promote in that community good order and virtue, religious knowledge and edification. But, to accomplish this end in any satisfactory manner, it must be their church, and not that merely of the government; it should exist for the people, and in the people, and with the people. This indeed is so manifest that the government of Elizabeth never contemplated the separation of a great majority as licensed dissidents from the ordinances established for their instruction. It was undoubtedly presumed, as it was in England, that the church and commonwealth, according to Hooker’s language, were to be two denominations of the same society; and that every man in Ireland who appertained to the one ought to embrace, and in due season would embrace, the communion of the other. There might be ignorance, there might be obstinacy, there might be feebleness of conscience for a time; and perhaps some connivance would be shown to these; but that the prejudices of a majority should ultimately prevail so as to determine the national faith, that it should even obtain a legitimate indulgence for its own mode of worship, was abominable before God, and incompatible with the sovereign authority. This sort of reasoning, half bigotry, half des-fts potism, was nowhere so preposterously displayed of this as in Ireland. The numeral majority is not always measur

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352 REBELLIONS OF ELIZABETH’S REIGN. CHAP. XVIII. to be ascertained with certainty; and some regard may fairly, or rather necessarily, be had to rank, to knowledge, to concentration. But in that island the disciples of the Reformation were in the most inconsiderable proportion among the AngloIrish colony, as well as among the natives; their church was a government without subjects, a college of shepherds without sheep. I am persuaded that this was not intended nor expected to be a permanent condition; but such were the difficulties which the state of that unhappy nation presented, or such the negligence of its rulers, that scarce any pains were taken in the age of Elizabeth, nor indeed in subsequent ages, to win the people’s conviction, or to eradicate their superstitions, except by penal statutes and the sword. The Irish language was universally spoken without the pale; it had even made great progress within it; the clergy were principally of that nation; yet no translation of the Scriptures, the chief means through which the Reformation had been effected in England and Germany, nor even of the regular liturgy, was made into that tongue; nor was it possible, perhaps, that any popular instruction should be carried far in Elizabeth’s reign, either by public authority or by the ministrations of the reformed clergy. Yet neither among the Welsh nor the Scots Highlanders, though Celtic tribes, and not much better in civility of life at that time than the Irish, was the ancient religion long able to withstand the sedulous preachers of reformation. It is evident from the history of Elizabeth’s reign that the Rebellions forcible dispossession of the catholic clergy, and of her their consequent activity in deluding a people too reign. open at all times to their counsels, aggravated the rebellious spirit of the Irish, and rendered their obedience to the law more unattainable. But, even independently of this motive, the Desmonds and Tyrones would have tried, as they did, the chances of insurrection, rather than abdicate their unlicensed but ancient chieftainship. It must be admitted that, if they were faithless in promises of loyalty, the crown’s representatives in Ireland set no good example; and when they saw the spoliations of property by violence or pretext of law, the sudden executions on alleged treasons, the breaches of treaty, sometimes even the assassinations, by which a despotic policy went onward in its work of subjugation, they did but play the usual game of barbarians in opposing craft and

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IRELAND. REBELLIONS OF ELIZABETH’S REIGN. 353 perfidy, rather more gross perhaps and notorious, to the same engines of a dissembling government.1

Yet if we can put any trust in our own testimonies, the great families were, by mismanagement and dissension, the curse of their vassals. Sir Henry Sidney represents to the queen, in 1567, the wretched condition of the southern and western counties in the vast territories of the earls of Ormond, Desmond, and Clanricarde.2 ” An unmeasurable tract,” he says, “is now waste and uninhabited, which of late years was well tilled and pastured.” ” A more pleasant nor a more desolate land I never saw than from Youghall to Limerick.“8 ” So far hath that policy, or rather lack of policy, in keeping dissension among them prevailed, as now, albeit all that are alive would become honest and live in quiet, yet are there not left alive in those two provinces the twentieth person necessary to inhabit the same.” 4 Yet this was but the first scene of calamity. After the rebellion of the last earl of Desmond, 1 Leland gives several instances of from subsequent events, we should think breach of faith in the government. A just, which may be thought to throw little tract, called a Brief Declaration of some suspicion on his own loyalty; yet the Government of Ireland, written by he seems to have been a protestant, and captain Lee, in 1594, and published in in 1594 the views of Tyrone were ambigDesiderata Curiosa Hibernica, vol. i., cen-uous, so that captain Lee may have been sures the two last deputies (Grey and deceived.

Fitzwilliams) for their ill-usage of the 2 Sidney Papers, i. 20. [This is in a Irish, and unfolds the despotic character long report to the queen, which contains of the English government. ” The cause an interesting view of the state of the they (the lords of the north) have to country during its transition from Irish stand upon those terms, and to seek for to English law. Athenry, he says, had better assurance, is the harsh practices once 300 good householders, and in his used against others by those who have own recollection twenty, who are rebeen placed in authority to protect men duced to four, and those poor. It had for your majesty’s service, which they been mixed by the Clanricardes. But, have greatly abused in this sort. They ” as touching all Leinster and Meath, I have drawn unto them by protection three dare affirm on my credit unto your majorfourhundred ofthecountrypeople,un-esty, as well for the English pale and der color to do your majesty service, and the justice thereof, it was never in the brought them to a place of meeting. where memory of the oldest man that now your garrison soldiers were appointed to liveth in greater quiet and obedience.“be, who have there most dishonorably 1845.]

put them all to the sword; and this hath 3 Ibid, 24. been by the consent and practice of the 4 Sidney Papers, i. 29. Spenser deslord-deputy for the time being. If this cants on the lawless violence of the sube a good course to draw those savage perior Irish, and imputes, I believe with people to the state to do your majesty much justice, a great part, of their crimes service, and not rather to enforce them to his own brethren, if they might claim to stand on their guard, I leave to your so proud a title, the bards:-” whomsomajesty.” P. 90. He goes on to enu-ever they find to be most licentious of merate more cases of hardship and tyran-life. most bold and lawless in his doings, ny; many being arraigned and convict-most dangerous and desperate in all parts ed of treason on slight evidence; many of disobedience and rebellious disposition, assaulted and killed by the sheriffs on him they set up and glorify in their commissions of rebellion; others im-rhymes, him they praise to the people, prisoned and kept in irons; among oth-and to young men make an example to ers, a youth, the heir of a great estate. follow.” P. 394. He certainly praises Tyrone more than, VOL. III. 23

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354 REBELLIONS OF ELIZABETH’S REIGN. CHAP. XVIII. the counties of Cork and Kerry, his ample patrimony, were so wasted by war and military executions, and famine and pestilence, that, according to a contemporary writer, who expresses the truth with hyperbolical energy, ” the land itself, which before those wars was populous, well inhabited, and rich in all the good blessings of God, being plenteous of corn, full of cattle, well stored with fruit and sundry other good commodities, is now become waste and barren, yielding no fruits, the pastures no cattle, the fields no corn, the air no birds, the seas, though full of fish, yet to them yielding nothing. Finally, every way the curse of God was so great, and the lands so barren both of man and beast, that whosoever did travel from the one end unto the other of all Munster, even from Waterford to the head of Limerick, which is about six-score miles, he should not meet any man, woman, or child, saving in towns and cities; nor yet see any beast but the very wolves, the foxes, and other like ravening beasts.“1 The severity of sir Arthur Grey, at this time deputy, was such that Elizabeth was assured he had left little for her to reign over but ashes and carcasses; and, though not by any means of too indulgent a nature, she was induced to recall him.2 His successor, sir John Perrott, who held the viceroyalty only from 1584 to 1587, was distinguished for a sense of humanity and justice, together with an active zeal for the enforcement of law. Sheriffs were now appointed for the five counties into which Connaught had some years before been parcelled; and even for Ulster, all of which, except Antrim and Down, had hitherto been undivided, as well as ungoverned.8 Yet even this apparently wholesome innovation aggravated at first the servitude of the natives, whom the new sheriffs were prone to oppress.4

Perrott, the best 1 Hollingshed, 460. mankind. The queen is said to have been 2 Leland, 287; Spenser’s Account of much displeased at it. Leland, 283. Ireland. p. 430 (vol. viii. of Todd’s edi-Spenser undertakes the defence of his tion, 1805). Grey is the Arthegal of the patron Grey. State of Ireland, p. 434. Faery Queen, the representative of the 3 Leland, 247,293. An Act had passed, virtue ofjustice in that allegory, attended 11

Eliz. c. 9, for dividing the whole island by Talus with his iron fail, which indeed into shire-ground, appointing sheriffs, was unsparingly employed to crush re-justices of the peace, &c.; which howevbellion.

Grey’s severity was signalized er was not completed till the time of sir in putting to death seven hundred Span-John Perrott. Hollingshed, p. 457.

iards who had surrendered at discretion 4 Leland, 305. Their conduct proin the fort of Smerwick. Though this yoked an insurrection both in Connaught might be justified by the strict laws of and Ulster. Spenser, who shows always war (Philip not being a declared enemy), a bias towards the most rigorous policy, it was one of those extremities which does injustice to Perrott. He did tread justly revolt the common feelings of down and disgrace all the English, and

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IRELAND OPPOSITION IN PARLIAMENT, 355 of Irish governors, soon fell a sacrifice to a court intrigue and the queen’s jealousy; and the remainder of her reign was occupied with almost unceasing revolts of the earl of Tyrone, head of the great sect of O’Neil in Ulster, instigated by Rome and Spain, and endangering, far more than any preceding rebellion, her sovereignty over Ireland. The old English of the pale were little more disposed to embrace the reformed religion, or to acknowledge the despotic principles of a Tudor administration, than the Irish themselves; and though they did not join the rebellions of those they so much hated, the queen’s deputies had sometimes to encounter a more legal resistance. A new race of colonists had begun to appear in their train, eager for possessions, and for the rewards of the crown, contemptuous of the natives, whether aboriginal or of English descent, and in Opposition consequence the objects of their aversion or jeal-in parliaousy.l Hence in a parliament summoned by sir ment. Henry Sidney in 1569, the first after that which had reluctantly established the protestant church, a strong country party, as it may be termed, was formed in opposition to the crown. They complained with much justice of the management by which irregular returns of members had been made; some from towns not incorporated, and which had never possessed the elective right; some self-chosen sheriffs and magistrates; some mere English strangers, returned for places which they had never seen. The judges, on reference to their opinion, declared the elections illegal in the two former cases; but confirmed the non-resident burgesses, which still left a majority for the court. The Irish patriots, after this preliminary discussion, opposed a new tax upon wines and a bill for the suspension of Poyning’s law. Hooker, an Englishman, chosen for Athenry, to whose account we are chiefly indebted for our knowledge of these proceedings, sustained the former in that high tone of a prerogative lawyer which always best pleased this mistress. ” Her majesty,” he said, ” of her own royal authority, might and may establish the same without any of your consents, as she hath already done the like in England; saving of her courtesy, it pleaseth her to have it pass with your set up and countenance the Irish all that proaching to an equality, with their fel% he could.” P. 437. This has in all ages low-subjects. been the language, when they have been 1 Leland, 248. placed on an equality, or anything ap

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356 PROCEEDINGS OF SIR H. SIDNEY. CHAP. XVIII. own consents by order of law, that she might thereby have the better trial and assurance of your dutifulness and goodwill towards her.” This language from a stranger, unusual among a people proud of their birthright in the common constitution, and little accustomed even to legitimate obedience, raised such a flame that the house was adjourned; and it was necessary to protect the utterer of such doctrines by a guard. The duty on wines, laid aside for the time, was carried in a subsequent session in the same year; and several other statutes were enacted, which, as they did not affect the pale, may possibly have encountered no opposition. A part of Ulster, forfeited by Slanes O’Neil, a rebel almost as formidable in the first years of this reign as his kinsman Tyrone was near its conclusion, was vested in the crown; and some provisions were made for the reduction of the whole island into shires. Connaught, in consequence, which had passed for one county, was divided into five.1 In sir Henry Sidney’s second government, which began in Arbitrary 1576, the pale was excited to a more strenuous reproceedings sistance by an attempt to subvert their liberties.

of sir Henry Sidney. r It had long been usual to obtain a sum of money for the maintenance of the household and of the troops by an assessment settled between the council and principal inhabitants of each district.

This, it was contended by the government, was instead of the contribution of victuals which the queen, by her prerogative of purveyance, might claim at a fixed rate, much lower than the current price.2 It was maintained on the other side to be a voluntary benevolence. Sidney now devised a plan to change it for a cess or permanent composition for every plough-land, without regard to those which claimed exemption from the burden of purveyance; and imposed this new tax by order of council, as sufficiently warrantable by the royal prerogative. The land owners of the pale remonstrated against such a violation of their franchises, and were met by the usual arguments They appealed to the text of the laws; the deputy replied by precedents against law. ” Her majesty’s prerogative,” he said, “is not limited by Magna Charta, nor found in Littleton’s Tenures, nor written in the books of Assizes, but regis1 Hollingshed’s Chronicles of Ireland, himself. Leland, 240; Irish Statutes. 842. This part is written by Hooker 11 Eliz. 2 Sidney Papers, i. 153.

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IRELAND. ACCESSION OF JAMES I. 357 tered in the remembrances of her majesty’s exchequer, and remains in the rolls of records of the Tower.” 1

It was proved, according to him, by the most ancient and credible records in the realm, that such charges had been imposed from time to time, sometimes by the name of cess, sometimes by other names, and more often by the governor and council, with such of the nobility as came on summons, than by parliament. These irregularities did not satisfy the gentry of the pale, who refused compliance with the demand, and still alleged that it was contrary both to reason and law to impose any charge upon them without parliament or grand council. A deputation was sent to England in the name of all the subjects of the English pale. Sidney was not backward in representing their behavior as the effect of disaffection; nor was Eliza beth likely to recede where both her authority and her revenue were apparently concerned. But, after some demonstrations of resentment in committing the delegates to the Tower, she took alarm at the clamors of their countrymen; and, aware that the king of Spain was ready to throw troops into Ireland, desisted with that prudence which always kept her passion in command, accepting a voluntary composition for seven years in the accustomed manner.2 James I. ascended the throne with as great advantages in Ireland as in his other kingdoms. That island was es I already pacified by the submission of Tyrone; and all was prepared for a final establishment of the English power upon the basis of equal laws and civilized customs; a reformation which in some respects the king was not ill fitted to introduce. His reign is perhaps on the whole the most important in the constitutional history of Ireland, and that from 1 Sidney Papers, i. 179. well term them, body and soul. For not 2 Id. 84. 117, &c., to 236; Holling-only in matter of religion they be Romshed, 389; Leland, 261. Sidney was much ish, but for government they will change, disappointed at the queen’s want of firm-to be under a prince of their own superness; but it was plain by the correspond-stition. Since your highness’ reign the ence that Walsingham also thought he papists never showed such boldness as had gone too far. P. 192. The sum re-now they do.” P. 184. This, however, quired seems to have been reasonable, hardly tallies with what he says afterabout 20001. a-year from the five shires wards (p. 208): ” I do believe, for far the of the pale; and, if they had not been greatest number of the inhabitants of stubbcrn, he thought all Munster also, the English pale, her highness hath as except the Desmond territories, would true and faithful subjects as any she have submitted to the payment. P. 183. hath subject to the crown; ” unless the “I have great cause,” he writes, ” to former passage refer chiefly to those withmistrust the fidelity of the greatest num-out the pale, who, in fact, were exclu.

ber of the people of this’ country’s birth sively concerned in the rebellions of this of all degrees; they be papists, as I may reign.

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358 LAWS AGAINST CATHOLICS. CHAP. XVIII. which the present scheme of society in that country is chiefly to be deduced. 1. The laws of supremacy and uniformity, copied from those of England, were incompatible with any exercise of the Roman catholic worship, or with the admission of any members of that church into civil trust. It appears indeed that they were by no means strictly executed during the queen’s reign; 1 yet the priests were of course excluded, so far as the English authority prevailed, from their churches and benefices; the former were chiefly ruined; the latter fell to protestant strangers or to conforming ministers of native birth, dissolute and ignorant, as careless to teach as the people were predetermined not to listen.2 The priests, many of 1 Leland, ii. 881.

protestant interests had so little influa ” The church is now spoiled,”

says ence, that the pope conferred three bishsir Henry Sidney in 1576, “as well by oprics, Derry, Clogher, and Raphoe. the ruin of the temples, as the dissipation throughout the reign of Elizabeth. Davand embezzling of the patrimony, and is, 254; Leland, ii. 248. What is more most of all for want of sufficient ministers, remarkable is, that two of these prelates as so deformed and overthrown a church were summoned to parliament in 1585
there is not, I am sure, in any region (Id. 295); the first in which some Irish where Christ is professed.” Sidney Pa-were returned among the commons. pers, i. 109. In the diocese of Meath, The reputation of the protestant church being the best inhabited country of all continued to be little better in the reign the realm, out of 224 parish churches, of Charles I., though its revenues were 105 were impropriate having only cu-much improved. Strafford gives the rates, of whom but eighteen could speak clergy a very bad character in writing to English, the rest being ” Irish rogues Laud. Vol. i. 187. And Burnet’s Life who used to be papists,” 52
other of Bedell, transcribed chiefly from a conchurches had vicars, and 52
more were temporary memoir, gives a detailed acin better state than the rest, yet far from count of that bishop’s diocese (Kilmore), well. Id.

112. Spenser gives a bad char-which will take off any surprise that acter of the protestant clergy, p. 412. [It might be felt at the slow progress of the was chiefly on this account that the uni-Reformation. He had about fifteen protversity of Dublin was founded in 1591. estant clergy, but all English, unable to Leland, ii. 819. -1845.] speak the tongue of the people, or to perAn act was passed, 12 Eliz. c. 1, for form any divine offices, or converse with erecting free schools in every diocese them, “which is no small cause of the under English masters; the ordinary continuance of the people in popery still.” paying one third of the salary, and the P. 47. ” The bishop observed,” says his clergy the rest.

This, however, must biographer, “with much regret, that the have been nearly impracticable. Another English had all along neglected the Irish act, 13 Eliz. c. 4, enables the archbishop as a nation, not only conquered but unof Armagh to grant leases of his lands disciplinable; and that the clergy had out of the pale for a hundred years with-scarce considered them as a part of their out assent of the dean and chapter, to charge; but had left them wholly into persons of English birth, “or of the Eng-the hands of their own priests, without lish and civil nation, born in this realm taking any other care of them but the of Ireland,” at the rent of 4d. an acre. making them pay their tithes. And, It recites the chapter to be “except aindeed, their priests were a strange sort very few of them, both by nation, educa-of people, that knew generally nothing tion, and customs, Irish, Irishly affec-but the reading their offices, which were tioned, and small hopes of their conform. not so much as understood by many of ities or assent unto any such devices as them; and they taught the people nothing would tend to the placing of any such but the saying their paters and aves in number of civil people there, to the dis-Latin.” P.

114. Bedell took the pains advantage or bridling of the Irish.” In to learn himself the Irish language; and, these northern parts the English and though he could not speak it, composed

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IRELAND. LAWS AGAINST CATHOLICS. 359 them, engaged in a conspiracy with the court of Spain against the queen and her successor, and, all deeming themselves unjustly and sacrilegiously despoiled, kept up the spirit of disaffection, or at least of resistance to religious innovation, throughout the kingdom.l The accession of James seemed a sort of signal for casting off the yoke of heresy; in Cork, Waterford, and other cities, the people, not without consent of the magistrates, rose to restore the catholic worship; they seized the churches, ejected the ministers, marched in public processions, and shut their gates against the lord-deputy. He soon reduced them to obedience; but almost the whole nation was of the same faith, and disposed to struggle for a public toleration. This was beyond every question their natural right, and as certainly was it the best policy of England to have granted it; but the kingcraft and the priestcraft of the day taught other lessons. Priests were ordered by proclamation to quit the realm; the magistrates and chief citizens of Dublin were committed to prison for refusing as to frequent the protestant church. The gentry of against the pale remonstrated at the court of Westminster; catholics and, though their delegates atoned for their selfdevoted courage by imprisonment, the secret menace of expostulation seems to have produced, as usual, some effect, in a direction to the lord-deputy that he should endeavor to conciliate the recusants by instruction. These penalties of recusancy, from whatever cause, were very little enforced, but the catholics murmured at the oath of supremacy, which shut them out from every distinction: though here again the execution of the law was sometimes mitigated, they justly thought themselves humiliated, and the liberties of their country endangered, by standing thus at the mercy of the crown. And it is plain that even within the pale the compulsory statutes were at least far better enforced than under the queen; while in those provinces within which the law now first began to have its course, the difference was still more acutely perceived.2 the first grammar ever made of it, had 1 Leland, 413. the common prayer read every Sunday in 2 Leland, 414, &c. In a letter from Irish, circulated catechisms, engaged the six catholic lords of the pale to the king clergy to set up schools, and even underin 1613, published in Desiderata Curiosa took a translation of the Old Testament, Hibernica, i. 158, they complain of the which he would have published, but for oath of supremacy, which they say had the opposition of Laud and Strafford. not been much imposed under the queen, P. 121. but was now for the first time enforced

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360 ENGLISH LAW ESTABLISHED. CHAP. XVIII. 2. The first care of the new administration was to perfect nglish la the reduction of Ireland into a civilized kingdom. established Sheriffs were appointed throughout Ulster; the terthrouhout ritorial divisions of counties and baronies were exIreland. tended to the few districts that still wanted them; the judges of assize went their circuits everywhere; the customs of tanistry and gavelkind were determined by the court of king’s bench to be void; the Irish lords surrendered their estates to the crown, and received them back by the English tenures of knight-service or socage; an exact account was taken of the lands each of these chieftains possessed, that he might be invested with none but those he occupied; while his tenants, exempted from those uncertain Irish exactions, the source of their servitude and misery, were obliged only to an annual quit-rent, and held their own lands by a free tenure. The king’s writ was obeyed, at least in profession, throughout Ireland; after four centuries of lawlessness and misgovernment a golden period was anticipated by the English courtiers, nor can we hesitate to recognize the influence of enlightened, and sometimes of benevolent minds, in the scheme of government now carried into effect.’

But two unhappy maxims debased their motives, and discredited their policy; the first, that none but the true religion, or the state’s in the remote parts of the country; so mended that the Irish should surrender that the most sufficient gentry were ex-their estates, and receive grants in tail eluded from magistracy, and meaner per-male, but no greater estate. Desiderata sons, if conformable, put instead. It is Curiosa Hibernica, i. 1. This would have said, on the other side, that the laws left a reversion in the crown. which against recusants were very little en-could not have been cut off by suffering forced, from the difficulty of getting a recovery. But as those who held by juries to present them.

Id. 359; Carte’s Irish tenure had probably no right to Ormond, 88. But this at least shows alienate their lands, they had little cause that there was some disposition to molest to complain. An act in 1569,12 Eliz. c. the catholics on the part of the govern-4, reciting the greater part of the Irish ment; and it is admitted that they were to have petitioned for leave to surrender excluded from offices, and even from their lands, authorizes the deputy, by practising at the bar, on account of the advice of the privy council, to grant letoath of supremacy. Id. 320; and com-ters patent to the Irish and degenerate pare the letter of six catholic lords with English, yielding certain reservations to the answer of lord deputy and council, the queen. Sidney mentions, in several in the same volume. of his letters, that the Irish were ready 1 Davis’s Reports, ubi supra; Disto surrender their lands. Vol. i. 94, 105, covery of Causes, &c., 260; Carte’s Life 165. of Ormond, i. 14; Leland, 418. It had The act 11 Jac. I.

c. 5 repeals divers long been an object with the English gov-statutes that treat the Irish as enemies, ernment to extinguish the Irish tenures some of which have been mentioned and laws. Some steps towards it were above. It makes all the king’s subjects taken under Henry VIII.; but at that under his protection to live by the same time there was too great a repugnance law. Somevestiges of the old distinctions among the chieftains.

In Elizabeth’s in-remained in the statute-book, and were structions to the earl of Sussex on taking eradicated in Strafford’s parliament. 10 the government in 1560, it is recom- & 11 ar. I., c. 6.

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IRELAND. SETTLEMENTS OF ENGLISH. 361 religion, could be suffered to exist in the eye of the law; the second, that no pretext could be too harsh or iniquitous to exclude men of a different race or erroneous faith from their possessions. 3. The suppression of Slanes O’Neil’s revolt in 1567
seems to have suggested the thought, or afforded the means, settlements of perfecting the conquest of Ireland by the same if,Engintr, methods that had been used to commence it, an Ulster. and extensive plantation of English colonists. The other parts. law of forfeiture came in very conveniently to further this great scheme of policy. O’Neil was attainted in the parliament of 1569; the territories which acknowledged him as chieftain, comprising a large part of Down and Antrim, were vested in the crown; and a natural son of sir Thomas Smith, secretary of state, who is said to have projected this settlement, was sent with a body of English to take possession of the lands thus presumed in law to be vacant. This expedition however failed of success; the native occupants not acquiescing in this doctrine of our lawyers.1 But fresh adventurers settled in different parts of Ireland; and particularly after the earl of Desmond’s rebellion in 1583, whose forfeiture was reckoned at 574,628 Irish acres, though it seems probable that this is more than double the actual confiscation.2 These lands in the counties of Cork and Kerry, left almost desolate by the oppression of the Geraldines themselves, and the far greater cruelty of the government in subduing them, were parcelled out among English undertakers at low rents, but on condition of planting eighty-six families on an estate of 12,000 acres, and in like proportion for smaller possessions. None of the native Irish were to be admitted as tenants; but neither this nor the other conditions were strictly observed by the undertakers, and the colony suffered alike by their rapacity and their neglect.3 The oldest of the second race of English families in Ireland are found among the descendants of these Munster colonists. We find among them also some distinguished names that have left no memorial in their posterity; sir Walter Raleigh, who here laid the foundation of his transitory success, and one not less in glory, and hardly less in 1

Leland, ii. 254. restored to the tenants of the attainted 2 See a note in Leland, ii. 302. The parties. truth seems to be, that in this, as in 3

Leland, ii. 801. other Irish forfeitures, a large part was

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362 TYRONE’S REBELLION. CHAP. XVIII. misfortune, Edmund Spenser. In a country-house once belonging to the Desmonds on the banks of the Mulla, near Doneraile, the first three books of the ” Faery Queen ” were written; and here too the poet awoke to the sad realities of life, and has left us, in his “Account of the State of Ireland,” the most full and authentic document that illustrates its condition. This treatise abounds with judicious observations; but we regret the disposition to recommend an extreme severity in dealing with the native Irish, which ill becomes the sweetness of his muse. The two great native chieftains of the north, the earls of Tyrone and Tyrconnel, a few years after the king’s accession, engaged, or were charged with having engaged, in some new conspiracy, and flying from justice were attainted of treason. Five hundred thousand acres in Ulster were thus forfeited to the crown; and on this was laid the foundation of that great colony which has rendered that province, from being the seat of the wildest natives, the most flourishing, the most protestant, and the most enlightened part of Ireland. This plantation, though projected no doubt by the king and by lord Bacon, was chiefly carried into effect by the lord deputy, sir Arthur Chichester, a man of great capacity, judgment, and prudence. He caused surveys to be taken of the several counties, fixed upon proper places for building castles or founding towns, and advised that the lands should be assigned, partly to English or Scots undertakers, partly to servitors of the crown, as they were called, men who had possessed civil or military offices in Ireland, partly to the old Irish, even some of those who had been concerned in Tyrone’s rebellion. These and their tenants were exempted from the oath of supremacy imposed on the new planters. From a sense of the error committed in the queen’s time by granting vast tracts to single persons, the lands were distributed in three classes, of 2000, 1500, and 1000 English acres; and in every county one half of the assignments was to the smallest, the rest to the other two classes. Those who received 2000 acres were bound within four years to build a castle and bawn, or strong court-yard; the second class within two years to build a stone or brick house with a bawn; the third class’a bawn only. The first were to plant on their lands within three years fortyeight able men, eighteen years old or upwards, born in England, or the inland parts of Scotland; the others to do

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IRELAND. INJUSTICE ATTENDING SETTLEMENTS. 363 the same in proportion to their estates. All the grantees were to reside within five years, in person or by approved agents, and to keep sufficient store of arms; they were not to alienate their lands without the king’s license, nor to let them for less than twenty-one years; their tenants were to live in houses built in the English manner, and not dispersed, but in villages. The natives held their lands by the same conditions, except that of building fortified houses; but they were bound to take no Irish exactions from their tenants, nor to suffer the practice of wandering with their cattle from place to place. In this manner were these escheated lands of Ulster divided among a hundred and four English and Scots undertakers, fifty-six servitors, and two hundred and eighty-six natives. All lands which through the late anarchy and change of religion had been lost to the church were restored; and some further provision was made for the beneficed clergy.

Chichester, as was just, received an allotment in a far ampler measure than the common servants of the crown.l This noble design was not altogether completed according to the platform. The native Irish, to whom some Injustice regard was shown by these regulations, were less attending equitably dealt with by the colonists, and by those them other adventurers whom England continually sent forth to enrich themselves and maintain her sovereignty. Pretexts were sought to establish the crown’s title over the possessions of the Irish; they were assailed through a law which they had but just adopted, and of which they knew nothing, by the claims of a litigious and encroaching prerogative, against which no prescription could avail, nor any plea of fairness and equity obtain favor in the sight of English-born judges. Thus, in the King’s and Queen’s counties, and in those of Leitrim, Longford, and Westmeath, 385,000 acres were adjudged to the crown, and 66,000 in that of Wicklow. The greater part was indeed regranted to the native owners on a permanent tenure; and some apology might be found for this harsh act of power in the means it gave of civilizing those central regions, always the shelter of rebels and robbers; yet this did not take off the sense of forcible spoliation which 1 Carte’s Life of Ormond, i. 15; Le-portant and interesting narrative; also land, 429; Farmer’s Chronicle of sir vol. ii. of the same collection 37; Bacon’s Arthur Chichester’s government in De-Works, i. 657. 6iderata Curiosa Hibernica, i. 32-an im

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364 INJUSTICE ATTENDING SETTLEMENTS. CHAP. XVII. every foreign tyranny renders so intolerable. Surrenders were extorted by menaces; juries refusing to find the crown’s title were fined by the council; many were dispossessed without any compensation, and sometimes by gross perjury, sometimes by barbarous cruelty. It is said that in the county of Longford the Irish had scarcely one third of their former possessions assigned to them, out of three fourths which had been intended by the king. Those who had been most faithful, those even who had conformed to the protestant church, were little better treated than the rest. Hence, though in many new plantations great signs of improvement were per. ceptible, though trade and tillage increased, and towns were built, a secret rankling for those injuries was at the heart of Ireland; and in these two leading grievances, the penal laws against recusants, and the inquisition into defective titles, we trace, beyond a shadow of doubt, the primary source of the rebellion in 1641.1 4. Before the reign of James, Ireland had been regarded either as a conquered country or as a mere colony of English, according to the persons or the provinces which were in question. The whole island now took a common character, that of a subordinate kingdom, inseparable from the English crown, and dependent also, at least as was taken for granted by our lawyers, on the English legislature; but governed after the model of our constitution, by nearly the same laws, and claiming entirely the same liberties. It was a natural 1 Leland, 437, 466; Carte’s Ormond, more judgment and dexterity than their 22; Desiderata Curiosa Hibernica, 238, elders, their experience and education 243, 378, et alibi; ii. 37, et post. In are sufficient. 6. They will give the first another treatise published in this collec-blow, which is very advantageous to tion, entitled a Discourse on the State of them that will give it. 7. The quarrel Ireland, 1614, an approaching rebellion for which they rebel will be under the is remarkably predicted. ”’ The next re-veil of religion and liberty, than which bellion, whensoever it shall happen, doth nothing is esteemed so precious in the threaten more danger to the state than hearts of men. 8. And, lastly, their any that hath preceded; and my reasons union is such, as not only the old Engare these: - 1. They have the same lish dispersed abroad in all parts of the bodies they ever had; and therein they realm, but the inhabitants of the pale have and had advantage over us. 2. From cities and towns, are as apt to take arms their infancies they have been and are against us, whicL no precedent time hath exercised in the use of arms. 3. The ever seen, as the ancient Irish.” Vol. i. realm, by reason of long peace, was never 432. ” I think that little doubt is to be so full of youth as at this present. made, but that the modern English and 4. That they are better soldiers than Scotch would in an instant be massacred heretofore, their continual employments in their houses.” P.

438. This rebellion in the wars abroad assure us; and they the author expected to be brought about do conceive that their men are better by a league with Spain, and with aid than ours. 5. That they are more pol-from France. Itic, and able to manage rebellion with

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IRELAND. IRISH PARLIAMENT. 365 consequence that an Irish parliament should represent, or affect to represent, every part of the kingdom. Constitution None of Irish blood had ever sat, either lords or of Irish commoners, till near the end of Henry VIII.‘s parliament. reign. The representation of the twelve counties into which Munster and part of Leinster were divided, and of a few towns, which existed in the reign of Edward III., if not later, was reduced by the defection of so many English families to the limits of the four shires of the pale.1 The old counties, when they returned to their allegiance under Henry VIII., and those afterwards formed by Mary and Elizabeth, increased the number of the commons; though in that of 1567, as has been mentioned, the writs for some of them were arbitrarily withheld. The two queens did not neglect to create new boroughs, in order to balance the more independent representatives of the old AngloIrish families by the English retainers of the court. Yet it is said that in seventeen counties out of thirty-two into which Ireland was finally parcelled, there was no town that returned burgesses to parliament before the reign of James I., and the whole number in the rest was but about thirty.2 He created at once forty new boroughs, or possibly rather more; for the number of the commons, in 1613, appears to have been 232.8 It was several times afterwards augmented, and reached its complement of 300 in 1692.4 These grants of the elective fianchise were made, not indeed improvidently, but with very sinister intents towards the freedom of parliament; two thirds of an Irish house of com1 The famous parliament of Kilkenny, ” and so the general scope and institution in 1367, is said to have been very numer-of parliament frustrated; they being orously attended. Leland, i. 319. We dained for the assurance of’the subjects find, indeed, an act, 10 I. VII. c. 23, an-not to be pressed with any new edicts or nulling what was done in a preceding laws, but such as should pass with their parliament, for this reason, among others, general consents and approbations.” P. that the writs had not been sent to all 158. The king’s mode of replying to this the shires, but to four only. Yet it ap-constitutional language was characterispears that the writs would not have been tic. ” What is it to you whether I make obeyed in that age.

many or few boroughs? My council may 2 Speech of sir John Davis (1612) on consider the fitness, if I require it. But the parliamentary constitution of Ire-what if I had created 40 noblemen and land, in Appendix to Leland, vol. ii. p. 400 boroughs? The more the merrier, 490, with the latter’s observations on it. the fewer the better cheer.” Desid. Cur. Carte’s Ormond, i. 18; Lord Mountmor-Hib. 308. res’s Hist. of Irish Parliament. 4

Mountmorres, i. 166. The whole 3 In the letter of the lords of the pale number of peers in 1634 was 122, and to king James above mentioned, they those present in parliament that year express their apprehension that the erect-were 66. They had the privilege not ing so many insignificant places to the only of voting, but even protesting by rank of boroughs was with the view of proxy; and those who sent none were bringing on fresh penal laws in religion; sometimes fined. Id. vol. i. 316

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366 CHARLES I. PROMISES GRACES. CHAP. XVIIL mons, as it stood in the eighteenth century, being returned with the mere farce of election by wretched tenants of the aristocracy. The province of Connaught, with the adjoining county of Clare, was still free from the intrusion of English colonists. The Irish had complied, both under Elizabeth and James, with the usual conditions of surrendering their estates to the crown in order to receive them back by a legal tenure. But, as these grants, by some negligence, had not been duly enrolled in chancery (though the proprietors had paid large fees for that security), the council were not ashamed to suggest, or the king to adopt, an iniquitous scheme of declaring the whole country forfeited, in order to form another plantation as extensive as that of Ulster. The remonstrances of those whom such a project threatened put a present stop to it; and Charles, on ascending the throne, found it better to hear the proposals of his Irish subjects for a composition.

After some time it was agreed between the court and the Irish promises agents in London, that the kingdom should voluntheris t tarily contribute 120,0001. in three years by equal payments, in return for certain graces, as they were called, which the king was to bestow. These went to secure the subject’s title to his lands against the crown after sixty years’

possession, and gave the people of Connaught leave to enroll their grants, relieving also the settlers in Ulster or other places from the penalties they had incurred by similar neglect. The abuses of the council-chamber in meddling with private causes, the oppression of the court of wards, the encroachments of military authority, and excesses of the soldiers were restrained. A free trade with the king’s dominions or those of friendly powers was admitted. The recusants were allowed to sue for livery of their estates in the court of wards, and to practise in courts of law, on taking an oath of mere allegiance instead of that of supremacy. Unlawful exactions and severities of the clergy were prohibited. These reformations of unquestionable and intolerable evils, as beneficial as those contained nearly at the same moment in the Petition of Right, would have saved Ireland long ages of calamity, if they had been as faithfully completed as they seemed to be Does not graciously conceded. But Charles I. emulated on confirm this occasion the most perfidious tyrants. It had them. been promised by an article in these graces that a

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IRELAND. ADMINISTRATION OF STRAFFORD. 367 parliament should be held to confirm them. Writs of summons were accordingly issued by the lord-deputy; but with no consideration of that fundamental rule established by Poyning’s law, that no parliament should be held in Ireland until the king’s license be obtained. This irregularity was of course discovered in England, and the writs of summons declared to be void. It would have been easy to remedy this mistake, if such it were, by proceeding in the regular course with a royal license. But this was withheld; no par. liament was called for a considerable time; and, when the three years had elapsed during which the voluntary contribution had been payable, the king threatened to straiten his graces if it were not renewed.1 He had now placed in the viceroyalty of Ireland that star of exceeding brightness, but sinister influence, the Adminis willing and able instrument of despotic power, trationof lord Strafford. In his eyes the country he gov-Strafford erned belonged to the crown by right of conquest; neither the original natives, nor even the descendants of the conquerors themselves, possessing any privileges which could interfere with its sovereignty. He found two parties extremely jealous of each other, yet each loath to recognize an absolute prerogative, and thus in some measure having a common cause. The protestants, not a little from bigotry, but far more from a persuasion that they held their estates on the tenure of a rigid religious monopoly, could not endure to hear of a toleration of popery, which, though originally demanded, was not even mentioned in the king’s graces; and disapproved the indulgence shown by those graces to recusants, which is said to have been followed by an impolitic ostentation of the Romish worship.2 They objected to a renewal 1 Carte’s Ormond, i. 48; Leland, ii. brought all under one form of divine ser475, et post. vice the crown is never safe on this side, 2 Leland, iii. 4, et post. A vehement &c. It were too much at once to disprotestation of the bishops about this temper them by bringing plantations time, with Usher at their head, against upon them, and disturbing them in the any connivance at popery, is a disgrace exercise of their religion, so long as it be to their memory.

It is to be met with in without scandal; and so, indeed, very many books.

Strafford, however, was inconsiderate, as I conceive, to move in far from any real liberality of sentiment. this latter, till that former be fully His abstinence from religious persecution settled, and by that means the protestant was intended to be temporary, as the party become by much the stronger, motives whereon it was founded. ” It which in truth I do not yet conceive it will be ever far forth of my heart to con-to be.” Straff.

Letters, ii. 89. He says, ceive that a conformity in religion is not however, and I believe truly, that no above all other things principally to be man had been touched for conscience’ intended. For undoubtedly till we be sake since he was deputy. Id. 112

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368 ADMINISTRATION OF STRAFFORD. CHAP. XVIII. of the contribution, both as the price of this dangerous tolerance of recusancy and as debarring the protestant subjects of their constitutional right to grant money only in parliament. Wentworth, however, insisted upon its payment for another year, at the expiration of which a parliament was to be called.1 The king did not come without reluctance into this last measure, hating, as he did, the very name of parliament; but the lord-deputy confided in his own energy to make it innoxious and serviceable. They conspired together how to extort the most from Ireland, and concede the least; Charles, in truth, showing a most selfish indifference to anything but his own revenue and a most dishonorable unfaithfulness to his word.2 The parliament met in 1634, with a strong desire of insisting on the confirmation of the graces they had already paid for; but Wentworth had so balanced the protestant and recusant parties, employed so skilfully the resources of fair promises and intimidation, that he procured six subsidies to be granted before a prorogation, without any mutual concession from the crown.3 It had been agreed that a second session should be Every parish, as we find by Bedell’s 278. In his speech to the two houses, he Life, had its priest and mass-house; in said, ” His majesty expects not to find some places mass was said in the you muttering, or, to name it more truchurches; the Romish bishops exercised ly, mutinying in corners. I am comtheirjurisdiction, which was fully obeyed; manded to carry a very watchful eye but “the priests were grossly ignorant over these private and secret conventiand openly scandalous, both for drunk-cles, to punish the transgression with a enness and all sort of lewdness.” P. 41, heavy and severe hand; therefore it be76. More than ten to one in his diocese, hoves you to look to it.” Id. 289. “Fithe county of Cavan, were recusants. nally,” he concludes, ” I wish you had 1 Some of the council-board having in-a right judgment in all things; yet let timated a doubt of their authority to me not prove a Cassandra amongst you, bind the kingdom, ” I was then put to to speak truth and not be believed. Howmy last refuge, which was plainly to de-ever, speak truth I will, were I to beclare that there was no necessity which come your enemy for it. Remember, induced me to take them to counsel in therefore, that I tell you, you may easily this business, for, rather than fail in so make or mar this parliament. If you necessary a duty to my master, I would proceed with respect, without laying undertake, upon the peril of my head, to clogs and conditions upon the king, as make the king’s army able to subsist, and wise men and good subjects ought to do, to provide for itself amongst them, with-you shall infallibly set up this parliaout their help.” Strafford Letters, i. 98.

ment eminent to posterity, as the very 2 Id. i. 183; Carte, 61. basis and foundation of the greatest hap3 The protestants, he wrote word, had piness and prosperity that ever befell a majority of eight in the commons. He this nation. But, if you meet a great told them ” it was very indifferent to him king with narrow circumscribed hearts, what resolution the house might take; if you will needs be wise and cautious that there were two ends he had in above the moon [sic], remember again view, and one he would infallibly at-that I tell you, you shall never be able tain, - either a submission of the people to cast your mists before the eyes of a to his majesty’s just demands, or a just discerning king; you shall be found out; occasion of breach, and either would con-your sons shall wish they had been the tent the king; the first was undeniably children of more believing parents; and and evidently best for them.” Id. 277, in a time when you look not for it, when

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IRELAND. ADMINISTRATION OF STRAFFORD. 369 held for confirming the graces; but in this, as might be ex. pected, the supplies having been provided, the request of both houses that they might receive the stipulated reward met with a cold reception; and ultimately the most essential articles, those establishing a sixty years’ prescription against the crown, and securing the titles of proprietors in Clare and Connaught, as well as those which relieved the catholics in the court of wards from the oath of supremacy, were laid aside. Statutes, on the other hand, were borrowed from England, especially that of uses, which cut off the methods they had hitherto employed for evading the law’s severity.1 Strafford had always determined to execute the project of the late reign with respect to the western counties. He proceeded to hold an inquisition in each county of Connaught, and summoned juries in order to preserve a mockery of justice in the midst of tyranny. They were required to find the king’s title to all the lands, on such evidence as could be found and was thought fit to be laid before them; and were told that what would be best for their own interest would be to return such-a verdict as the king desired; what would be best for his, to do the contrary; since he was able to establish it without their consent, and wished only to invest them graciously with a large part of what they now unlawfully withheld from him. These menaces had their effect in all counties except that of Galway, where a jury stood out obstinately against the crown, and being in consequence, as well as the sheriff, summoned to the castle in Dublin, were sentenced to an enormous fine. Yet the remonstrances of the western proprietors were so clamorous that no steps were immediately taken for carrying into effect the designed plantation; and the great revolutions of Scotland and England which soon ensued gave another occupation to the mind of lord Strafford.2

It has never been disputed that a more uniit will be too late for you to help, the king expressly approved the denial of sad repentance of an unadvised heart the graces, though promised formerly by shall be yours, lasting honor shall be my himself. Id. 345; Leland, iii. 20. master’s.” “I can now say,” Strafford observes These subsidies were reckoned at near (Id. 344), ” the king is as absolute here 41,0001. each, and were thus apportioned: as any prince in the whole world can be; Leinster paid 13,0001. (of which 10001. and may still be, if it be not spoiled on from the city of Dublin), Munster that side.” 11,0001., Ulster, 10,0001., Connaught 68001. Strafford Letters, i. 353, 370, 402, Mountmorres, ii. 16.

442, 451, 454, 473; ii. 113, 139, 66; Le 1 Irish Statutes, 10 Car. I. c.

1, 2 3 land, iii. 30. 39; Carte, 82. &c.; Strafford Letters, i. 279, 312.

The VOL. III. 24

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370 ADMINISTRATION OF STRAFFORD. CHAP. XVIII. form administration of justice in ordinary cases, a stricter coercion of outrage, a more extensive commerce, evidenced by the augmentation of customs, above all, the foundation of the great linen manufacture in Ulster, distinguished the period of his government.1 But it is equally manifest that neither the reconcilement of parties, nor their affection to the English crown, could be the result of his arbitrary domination; and that, having healed no wound he found, he left others to break out after his removal. The despotic violence of this minister towards private persons, and those of great eminence, is in some instances well known by the proceedings on his impeachment, and in others is sufficiently familiar by our historical and biographical literature. It is indeed remarkable that we find among the objects of his oppression and insult all that most illustrates the contemporary annals of Ireland, the venerable learning of Usher, the pious integrity of Bedell, the experienced wisdom of Cork, and the early virtue of Clanricarde. The parliament assembled by Strafford in 1640 began with loud professions of gratitude to the king for the excellent governor he had appointed over them; they voted subsidies to pay a large army raised to serve against the Scots, and seemed eager to give every manifestation of zealous loyalty.2 But after their prorogation, and during the suminer of that year, as rapid a tendency to a great revolution became visible as in England; the commons, when they met again. seemed no longer the same men; and, after the fall of their great viceroy, they coalesced with his English enemies to consummate his destruction. Hate long smothered by fear, but inflamed by the same cause, broke forth in a remonstrance of the commons presented through a committee, not to the king, but a superior power, the long parliament of England. The two houses united to avail themselves of the advantageous moment, and to extort, as they very justly might, from the necessities of Charles that confirmation of his promises which had been refused in his prosperity. Both parties, catholic as well as protestant, acted together in this national cause, shunning for the present to bring forward 1 It is, however, true that he discour-promoting the other. Strafford Letters, aged the woollen manufacture, in order ii.

19. to keep the kingdom more dependent, 2 Leland, iii. 51. Strafford himself (ii. and that this was part of his motive in 397) speaks highly of their disposition.

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IRELAND. REBELLION OF 1641. 371 those differences which were not the less implacable for being thus deferred. The catalogue of temporal grievances was long enough to produce this momentary coalition: it might be groundless in some articles, it might be exaggerated in more, it might in many be of ancient standing; but few can pretend to deny that it exhibits a true picture of the misgovernment of Ireland at all times, but especially under the earl of Strafford. The king, in May, 1641, consented to the greater part of their demands, but unfortunately they were never granted by law.l But the disordered condition of his affairs gave encouragement to hopes far beyond what any parliamentary remonstrances could realize; hopes long cherished when they had seemed vain to the world, but such as courage and bigotry and resentment would never lay aside. The court of Madrid had not abandoned its connection with the disaffected Irish, especially of the priesthood; the son of Tyrone, and many followers of that cause, served in its armies; and there seems much reason to believe that in the beginning of 1641 the project of insurrection was formed among the expatriated Irish, not without the concurrence of Spain, and perhaps of Richelieu.2 The government had passed from the vigorous 1 Carte’s Ormond, 100, 140; Leland, This letter, which Carte seems to have iii. 54, et post; Mountmorres, ii. 29. A taken from a printed book, is authentiremonstrance of the commons to lord-cated in Clarendon State Papers, ii. 143. deputy Wandesford against various griev-I have mentioned in another part of this ances was presented 7th November, 1640, work, Chap. VIII., the provocations before lord Strafford had been impeached. which might have induced the cabinet Id. 39. As to confirming the graces, the of Madrid to foment disturbances in delay, whether it proceeded from the Charles’s dominions. The lords-justices king or his Irish representatives, seems to are taxed by Carte with supineness in have caused some suspicion. Lord Clan-paying no attention to this letter (vol.

i. ricarde mentions the ill consequences 166); but how he knew that they paid that might result, in a letter to lord Bris-none seems hard to say.

tol. Carte’s Ormond, iii. 40. Another imputation has been thrown 2 Sir Henry Vane communicated to on the Irish government and on the parthe lords-justices, by the king’s com-liament, for objecting to permit levies to mand, March 16, 1640-41, that advice be made for the Spanish service out of had been received and confirmed by the the army raised by Strafford, and disministers in Spain and elsewhere, which banded in the spring of 1641, which the ” deserved to be seriously considered, and king had himself proposed. Carte, i. 133; an especial care and watchfulness to be and Leland, 82, who follows the former had therein: that of late there have implicitly, as he always does. The event, passed from Spain (and the like may indeed, proved that it would have been well have been from other parts ) an un-far safer to let those soldiers, chiefly speakable number of Irish churchmen catholics, enlist under a foreign banner; for England and Ireland, and some good but, considering the long connection of old soldiers, under pretext of asking leave Spain with that party, and the apprehento raise men for the king of Spain; where-sion always entertained that the disafas, it is observed among the Irish friars fected might acquire military experience there, a whisper was, as if they expected in her service, the objection does not a rebellion in Ireland, and particularly seem so very unreasonable. in Connaught ” Carte’s Ormond, iii. 30.

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372 REBELLION OF 1641. CHAP. XVIII hands of Strafford into those of two lords-justices, sir William Parsons and sir John Borlase, men by no means equal to the critical circumstances wherein they were placed, though possibly too severely censured by those who do not look at their extraordinary difficulties with sufficient candor. The primary causes of the rebellion are not to be found in their supineness or misconduct, but in the two great sins of the English government; in the penal laws as to religion which pressed on almost the whole people, and in the systematic iniquity which despoiled them of their possessions. They could not be expected to miss such an occasion of revolt; it was an hour of revolution, when liberty was won by arms, and ancient laws were set at nought; the very success of their worst enemies, the covenanters in Scotland, seemed the assurance of their own victory, as it was the reproach of their submission.1 The rebellion broke out, as is well known, by a sudden Rebellion massacre of the Scots and English in Ulster, deof 1641. signed no doubt by a vindictive and bigoted people to extirpate those races, and, if contemporary authorities are to be credited, falling little short of this in its execution. Their evident exaggeration has long been acknowledged; but possibly the scepticism of later writers has extenuated rather too much the horrors of this massacre.2 It was certainly not I The fullest writer on the Irish re-tion and disingenuousness as Curry’s bellion is Carte, in his Life of Ormond, Historical Account of the Civil Wars in who had the use of a vast collection of Ireland. documents belonging to that noble fam-2 Sir John Temple reckons the number ily, a selection from which forms his of protestants murdered, or destroyed in third volume. But he is extremely par-some manner, from the breaking out of tial against all who leaned to the parlia-the rebellion in October, 1641, to the mentary or puritan side, and especially cessation in September, 1643, at three the lords-justices, Parsons and Borlase; hundred thousand, an evident and enorwhich renders him, to say the least, a mous exaggeration; so that the first edivery favorable witness for the catholics. tion being incorrectly printed, and with Leland, with much candor towards the numerals, we might almost suspect a latter, but a good deal of the same prej-cipher to have been added by mistake, p. udice against the presbyterians, is little 15 (edit. Maseres). Clarendon says forty more than the echo of Carte. A more or fifty thousand were murdered in the vigorous though less elegant historian is first insurrection. Sir William Petty, in Warner, whose impartiality is at least his Political Anatomy of Ireland, from equal to Leland’s, and who may perhaps, calculations too vague to deserve confiupon the whole, be reckoned the best deuce, puts the number massacred at modern authority. Sir John Temple’s thirtyseven thousand. Warner has scruistory of Irish Rebellion, and lord Clan-tinized the examination of witnesses, ricarde’s Letters, with a few more of less taken before a commission appointed in importance, are valuable contemporary 1648, and now deposited in the library testimonies. of Trinity College, Dublin; and, finding The catholics themselves might better many of the depositions unsworn, and leave their cause to Carte and Leland others founded on hearsay, has thrown than excite prejudices instead of allaying more doubt than any earlier writer on them by such a tissue of misrepresenta-the extent of the massacre.

Upon the

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IRELAN REBELLION OF 1641. 378 the crime of the catholics generally; nor, perhaps, in the other provinces of Ireland are they chargeable with more cruelty than their opponents.l Whatever may have been the original intentions of the lords of the pale, or of the AngloIrish professing the old religion in general (which has been a problem in history), a few months only elapsed before they were almost universally engaged in the war.” The old diswhole, be thinks twelve thousand lives 154. Sir Charles Coote and sir William of protestants the utmost that can be al-St. Leger are charged with great cruelties lowed for the direct or indirect effects of in Munster. The catholic confederates the rebellion, during the two first years, spoke with abhorrence of the Ulster except losses in war (History of Irish massacre. Leland, 161; Warner, 203. Rebellion, p. 397), and of these only one They behaved in many parts with huthird by murder.

It is to be remarked, ianity; nor, indeed, do we find frequent however, that no distinct accounts could instances of violence, except in those be preserved in formal depositions of so counties where the proprietors had been promiscuous a slaughter, and that the dispossessed. [It has been not unfrevery exaggerations show its tremendous quent with catholic writers to allege that nature. The Ulster colony, a numerous 3000 Irish had been massacred by the and brave people, were evidently unable protestants in Isle Magee, near Carricto make head for a considerable time fergus, before the rebellion broke out. against the rebels, which could hardly Curry, in his grossly unfair History of have been if they had only lost a few the Civil Wars, and Plowden, in his not thousands. It is idle to throw an air of less unfair and more superficial Historiridicule (as is sometimes attempted) on cal Review of the State of Ireland, are the depositions because they are mingled among these; the latter having been with some fabulous circumstances, such misled, or affecting to be persuaded, by a as the appearance of the ghosts of the passage in the appendix to Clarendon’s murdered on the bridge at Cavan; which, Historical Account of Irish Affairs, which by the way, is only told, in the deposition appendix evidently was not written by subjoined to Temple, as the report of the that historian himself, but subjoined by place, and was no cold-blooded fabrica-some one to the posthumous work. tion, but the work of a fancy bewildered Carte, though he seems to be staggered by real horrors. by the numbers, gives some credit to, or Carte, who dwells at length on every at least states as not improbable, the circumstance unfavorable to the opposite main fact, that this massacre occurred party, despatches the Ulster massacre in antecedently to any committed by the a single short paragraph, and coolly re-Irish themselves. Life of Ormond, i. 188. marks, that there were not many mur-But Leland refers to the original deposiders, ” considering the nature of such an tions in Trinity College, Dublin, whence affair,” in the first week of the insurrec-it appears that some Scots soldiers in gartion. Life of Ormond, i. 175-177. This rison at Carric-fergus sallied out in Janis hardly reconcilable to fair dealing.

uary, when the rebellion was at its height, Curry endeavors to discredit even War-and slaughtered a few families of unofuer’s very moderate estimate, and affects fending natives in Isle Magee. Leland, to call him, in one place (p. 184),’ a iii. 129. Dr. Lingard, it must in justice writer highly prejudiced against the in-be added, does not repeat this slander.

- surgents,” which is grossly false. He 1845. praises Carte and Nalson, the only prot-2 Carte and Leland endeavor to show estants he does praise, and bestows on that the Irish of the pale were driven into the latter the name of impartial. I rebellion by the distrust of the lords. wonder he does not say that no one prot-justices, who refused to furnish them estant was murdered. Dr. Lingard has with arms, after the revolt in Ulster, and lately given a short account of the Ulster permitted the parliament to sit for one rebellion (Hist. of England, x. 154), omit-day only, in order to publish a declaration ting all mention of the massacre, and against the rebels. But the prejudice of endeavoring, in a note at the end of the these writers is very glaring. The insurvolume, to disprove, by mere scraps of rection broke out in Ulster, October 23, quotation, an event of such notoriety, 1641; and in the beginning of December that we must abandon all faith in public the lords of the pale were in arms. fame if it were really unfounded. Surely this affords some presumption I Carte, i. 253, 266; iii. 51; Leland, that Warner has reason to think them

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374 REBELLION OF 1641. CHAP. XVII1. tinctions of Irish and English blood were obliterated by those of religion; and it became a desperate contention whether the majority of the nation should be trodden to the dust by forfeiture and persecution, or the crown lose everything beyond a nominal sovereignty over Ireland. The insurgents, who might once perhaps have been content with a repeal of the penal laws, grew naturally in their demands through success, or rather through the inability of the English government to keep the field, and began to claim the entire establishment of their religion; terms in themselves not unreasonable, nor apparently disproportionate to their circumstances, and which the king was, in his distresses, nearly ready to concede, but such as never could have been obtained from a third party, of whom they did not sufficiently think, the parliament and people of England. The commons had, at the very beginning of the rebellion, voted that all the forfeited estates of the insurgents should be allotted to such as should aid in reducing the island to obedience; and thus rendered the war desperate on the part of the Irish.1

No great efforts were made, however, for some years; but, after the king’s person had fallen into their hands, the victorious party set themprivy to the rebellion, or, at least, not witness for what passed in Dublin; and very averse to it. P. 146. And with the he makes out a complete justification, as suspicion that might naturally attach to far as appears, for the conduct of the all Irish catholics, could Borlase and Par-lords-justices and council towards the sons be censurable for declining to in-lords of the pale and the catholic gentry. trust them with arms, or rather for doing Nobody alleges that Parsons and Borso with some caution?

Temple, 56. If lase were men of as much energy as lord they had acted otherwise, we should cer-Strafford; but those who sit down in tainly have heard of their incredible im-their closets, like Leland and Warner, prudence. Again, the catholic party in more than a century afterwards, to lavish the house of commons were so cold in the most indignant contempt on their their loyalty, to say the least, that they memory. should have reflected a little on objected to giving any appellation to the the circumstances. rebels worse than that of discontented 1 “I perceived (says Preston, general gentlemen. Leland, 140; see too Clan-of the Irish, writing to lord Clanricarde), ricarde’s Ietters, p. 33, &c. In fact, that the catholic religion, the rights and several counties of Leinster and Con-prerogatives of his majesty, my dread naught were in arms before the pale. sovereign, the liberties of my country, and It has been thought by some that the whether there should be an Irishman or lords-justices had time enough to have no, were the prizes at stake.” Carte, iii. quelled the rebellion in Ulster before it 120. Clanricarde himself expresses to the spread farther. Warner, 130. Of this, king, and to his brother, lord Essex. in as I conceive, we should not pretend to January 1642, his apprehension that the judge confidently. Certain it is that the English parliament meant to make it a whole army in Ireland was very small, religious war. Clanricarde’s Letters, 61 consisting of only nine hundred and et post. The letters of this great man, forty-three horse, and two thousand two perhaps the most unsullied character in hundred and ninety-seven foot. Temple, the annals of Ireland, and certainly more 32; Carte, 194. I think sir John Temple so than even his illustrious contemporary, has been unjustly depreciated; he was the duke of Ormond, exhibit the struggles master of the rolls in Ireland at the time, of a noble mind between love of his counand a member of the council no bad try and his religion on the one hand,

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IRELAND. ACT OF SETTLEMENT. 375 selves in earnest to effect the conquest of Ireland. This was achieved by Cromwell and his powerful army after several years, with such bloodshed and rigor that, tion of the in the opinion of lord Clarendon, the sufferings of Irishby that nation, from the outset of the rebellion to its close, have never been surpassed but by those of the Jews in their destruction by Titus. At the restoration of Charles II. there were in Ireland two people, one either of native or old English blood, Restoration the other of recent settlement; one catholic, the of Charles other protestant; one humbled by defeat, the other II insolent with victory; one regarding the soil as his ancient inheritance, the other as his acquisition and reward. There were three religions - for the Scots of Ulster and the army of Cromwell had never owned the episcopal church, which for several years had fallen almost as low as that of Rome.

There were claims, not easily set aside on the score of right, to the possession of lands, which the entire island could not satisfy. In England, little more had been necessary than to revive a suspended constitution; in Ireland, it was something beyond a new constitution and code of law that was requiredit was the titles and boundaries of each man’s private estate that were to be litigated and adjudged. The episcopal church was restored with no delay, as never having been abolished by law; and a parliament, containing no catholics and not many vehement nonconformists, proceeded to the great work of settling the struggles of opposite claimants by a fresh partition of the kingdom.1 The king had already published a declaration for the settlement of Ireland, intended as the basis of an act Act of of parliament. The adventurers, or those who, on settlement. the faith of several acts passed in England in 1642, with the assent of the late king, had advanced money for quelling the rebellion, in consideration of lands to be allotted to them in certain stipulated proportions, and who had, in general, actually received them from Cromwell, were confirmed in all the lands possessed by them on the 7th of May, 1659; and all the deficiencies were to be supplied before the next year. The army was confirmed in the estates already allotted for loyalty and honor on the other. At a thought himself able to conciliate both later period of that unhappy war, he principles. 1 Carte, ii. 221.

Leland, 420.

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376 ACT OF SETTLEMENT. CHAP. XVIIL their pay, with an exception of church lands and some others. Those officers who had served in the royal army against the Irish before 1649 were to be satisfied for their pay, at least to the amount of five eighths, out of lands to be allotted for that purpose. Innocent papists, that is, such as were not concerned in the rebellion and whom Cromwell had arbitrarily transplanted into Connaught, were to be restored to their e.-tates, and those who possessed them to be indemnified. Those who had submitted to the peace of 1648, and had not been afterwards in arms, if they had not accepted lands in Connaught, were also to be restored as soon as those who now possessed them should be satisfied for their expenses. Those who had served the king abroad, and thirty-six enumerated persons of the Irish nobility and gentry, were to be put on the same footing as the last. The precedency of restitution, an important point where the claims exceeded the means of satisfying them, was to be in the order above specified.1 This declaration was by no means pleasing to all concerned. The loyal officers who had served before 1649
murmured that they had little prospect of more than twelve shillings and sixpence in the pound, while the republican army of Cromwell would receive the full value. The Irish were more loud in their complaints; no one was to be held innocent who had been in the rebel quarters before the cessation of 1643, and other qualifications were added so severe that hardly any could expect to come within them. In the house of commons the majority, consisting very much of the new interests, that is, of the adventurers and army, were in favor of adhering to the declaration. In the house of lords it was successfully urged that, by gratifying the new men to the utmost, no fund would be left for indemnifying the loyalists or the innocent Irish. It was proposed that, if the lands not yet disposed of should not be sufficient to satisfy all the interests for which the king had meant to provide by his declaration, there should be a proportional defalcation out ot every class for the benefit of the whole. These discussions were adjourned to London, where delegates of the different parties employed every resource of intrigue at the English court. The king’s bias towards the religion of the Irish had rendered him their friend, and they seemed, at one time, 1 Carte, ii. 216; Leland, 414.

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lRELAND. ACT OF SETTLEMENT. 377 likely to reverse much that had been intended against them; but their agents grew rash with hope, assumed a tone of superiority which ill became their condition, affected to justify their rebellion, and finally so much disgusted their sovereign that he ordered the act of settlement to be sent back with little alteration, except the insertion of some more Irish nominees.1 The execution of this act was intrusted to English commissioners, from whom it was reasonable to hope for an impartiality which could not be found among the interested classes. Notwithstanding the rigorous proofs nominally exacted, more of the Irish were pronounced innocent than the commons had expected; and the new possessors having the sway of that assembly, a clamor was raised that the popish interest had prevailed: some talked of defending their estates by arms, some even meddled in fanatical conspiracies against the government; it was insisted that a closer inquisition should be made and stricter qualifications demanded. The manifest deficiency of lands to supply all the claimants for whom the act of settlement provided, made it necessary to resort to a supplemental measure, called the act of explanation. The adventurers and soldiers relinquished one third of the estates enjoyed by them on the 7th of May, 1659. Twenty Irish nominees were added to those who were to be restored by the king’s favor; but all those who had not already been adjudged innocent, more than three thousand in number, were absolutely cut off from any hope of restitution. The great majority of these no question were guilty; yet they justly complained of this confiscation without a trial.2 Upon the whole result, the Irish catholics, having previously held about two thirds of the kingdom, lost more than one half of their possessions by forfeiture on account of their rebellion. If we can rely at all on the calculations, made almost in the infancy of political arithmetic by one of its most diligent investigators, they were diminished also by much more than one third through the calamities of that period.3 1 Carte, 222 et post; Leland, 420 et perficies of Ireland at 10,500,000 Irish post. acres (each being to the English measure 2 Carte, 258-316; Leland, 431, et post. nearly as thirteen to eight), whereof 3 The statements of lands forfeited and 7,500,000 are of good land, the rest being rstored, under the execution of the act moor, bog, and lake. In 1641, the estates of settlement, are not the same in all writ-of the protestant owners and of the ers. Sir William Petty estimates the su-church were about one third of these cul

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378 DISSATISFACTION OF CATHOLICS. CHAP. XVII. It is more easy to censure the particular inequalities, or even in some respects injustice of the act of settlement, than to point out what better course was to have been adopted. The readjustment of all private rights after so entire a destruction of their landmarks, could only be effected by the coarse process of general rules. Nor does it appear that the catholics, considered as a great mass, could reasonably murmur against the confiscation of half their estates, after a civil war wherein it is evident that so large a proportion of themselves were concerned.1 Charles, it is true, had not been personally resisted by the insurgents; but, as chief of England, he stood in the place of Cromwell, and equally represented the sovereignty of the greater island over the lesser, which under no form of government it would concede. The catholics, however, thought themselves oppressed by Hopesofthe the act of settlement, and could not forgive the catholics duke of Ormond for his constant regard to the under Charles protestant interests and the supremacy of the Engand Jame. lish crown. They had enough to encourage them in the king’s bias towards their religion, which he was able to manifest more openly than in England. Under the administration of Lord Berkely in 1670, at the time of Charles’s conspiracy with the king of France to subvert religion and tivable lands, those of catholics two thirds. stated in the English Journals of ComThe whole of the latter were seized or se-mons, 12th Jan.

1694, that the court of questered by Cromwell and the parlia-claims (that is, the commissioners apment. After summing upthe allotments pointed as in the text) allotted 4,560,037 made by the commissioners under the act acres to the English, 2,323,809 to the of settlement, he concludes that, in 1672, Irish, and left 824,391 undisposed. This, the English, protestants, and church by supposing the last to have been afterhave 5,140,000 acres, and the papists wards divided, would very closely tally nearly half as much. Political Anatomy with sir William Petty’s estimate.  of Ireland.

c. 1. In lord Orrery’s letters, 1845.] i. 187 et post, is a statement which seems Petty calculates that above 500,000 of not altogether to tally with sir William the Irish’ perished and were wasted by Petty’s; nor is that of the latter clear the sword, plague, famine, hardship, and and consistent in all its computations. banishment, between the 23d day of OcLawrence, author of ” The Interest of tober 1641 and the same day 1652;”

and Ireland stated,” a treatise published in conceives the population of the island in 1682, says, “Of 10,868,949 acres, returned 1641 to have been nearly 1,500,000, inby the last survey of Ireland, the Irish cluding protestants. But his conjectures papists are possessed but of 2,041,108
are prodigiously vague. acres, which is but a small matter above 1 1 -tty is as ill satisfied with the restothe fifth part of the whole.” Part ii.

p. ratioi of lands to the Irish as they could 48. But, as it is evidently below one be with the confiscations. ” Of all that fifth, there must be some mistake. It claimed innocency, seven in eight obappears that in one of these sums he tained it. The restored persons have reckoned the whole extent, and in the more than what was their own in 1641 other only cultivable lands. Lord Clare, by at least one fifth. Of those adjudged:n his celebrated speech on the Union, innocents, not one in twenty were really greatly overrates the confiscations. [It is so.”

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IRELAND. WAR OF 1689. 379 liberty, they began to menace an approaching change, and to aim at revoking, or materially weakening, the act of settle. ment. The most bigoted and insolent of the popish clergy, who had lately rejected with indignation an offer of more reasonable men to renounce the tenets obnoxious to civil governments, were countenanced at Dublin; but the first alarm of the new proprietors, as well as the general apprehension of the court’s designs in England, soon rendered it necessary to desist from the projected innovations.1 The next reign, of course, reanimated the Irish party; a dispensing prerogative set aside all the statutes; every civil office, the courts of justice and the privy council, were filled with catholics; the protestant soldiers were disbanded; the citizens of that religion were disarmed; the tithes were withheld from their clergy; they were suddenly reduced to feel that bitter condition of a conquered and proscribed people which they had long rendered the lot of their enemies.2 From these enemies, exasperated by bigotry and revenge, they could have nothing but a full and exceeding measure of retaliation to expect; nor had they even the last hope that an English king, for the sake of his crown and country, must protect those who formed the strongest link between the two islands. A man violent and ambitious, without superior capacity, the earl of Tyrconnel, lord-lieutenant in 1687 and commander of the army, looked only to his master’s interests, in subordination to those of his countrymen and of his own. It is now ascertained that, doubtful of the king’s success in the struggle for restoring popery in England, he had made secret overtures to some of the French agents for casting off all connection with that kingdom in case of James’s death, and, with the aid of Louis, placing the crown of Ireland on his own head.8 The Revolution in England was followed by a warar of9, in Ireland of three years’ duration, and a war on and final both sides, like that of 1641, for selfpreservation. reduction In the parliament held by James at Dublin in 1690, 1 Carte, ii. 414 et post. Leland, 458 et islands. in case that a protestant should post. succeed to the crown of England. He 2 Leland, 493
et post. Mazure, Hist. had accordingly a private interview with de la Revolut. ii. 113. a confidential agent of the lord-lieuten3 M. MAIzure has brought this remark-ant at Chester, in the month of October, able fact to light. Bonrepos, a French 1687. Tyrconnel undertook that in less emissary in England, was authorized by than a year everything should be prehis court to proceed in a negotiation with pared. Id. ii. 281, 288; iii. 430.

Tyrconnel for the separation of the two

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380 ARTICLES OF LIMERICK. CHAP. XVIII. the act of settlement was repealed, and above 2000 persons attainted by name both, it has been said perhaps with little truth, against the king’s will, who dreaded the impetuous nationality that was tearing away the bulwarks of his throne.1 But the magnanimous defence of Derry and the splendid victory of the Boyne restored the protestant cause: though the Irish, with the succor of French troops, maintained for two years a gallant resistance, they could not ultimately withstand the triple superiority of military talents, resources, and discipline. Their bravery, however, served to obtain the articles of Limerick on the surrender of that city - conceded by their noble-minded conqueror, against the disposition of those who longed to plunder and persecute their fallen enemy. By the first of these articles, “the Roman catholics of this kingdom shall enjoy such privileges in the exercise of their religion as are consistent with the laws of Ireland, or as they did enjoy in the reign of king Charles II.; and their majesties, as soon as their affairs will permit them to summon a parliament in this kingdom, will endeavor to procure the said Roman catholics such further security in that particular as may preserve them from any disturbance upon the account of their said religion.” The second secures to the inhabitants of Limerick and other places then in possession of the Irish, and to all officers and soldiers then in arms who should return to their majesties’

obedience, and to all such as should be under their protection in the counties of Limerick, Kerry, Clare, Galway, and Mayo, all their estates and all their rights, privileges, and immunities, which they held in the reign of Charles II., free from all forfeitures or outlawries incurred by them.2 This second article, but only as to the garrison of Limerick or other persons in arms, is confirmed by statute some years afterwards.8 The first article seems, however, to be passed over. The forfeitures on account of the rebellion, estimated at 1,060,792 acres, were somewhat diminished by restitutions to the ancient possessors under the capitulation; the greater part were lavishly distributed to English grantees.4 1 Leland, 537. This seems to rest on 2 See the articles at length in Leland, the authority of Leslie, which is by no 619. means good.

Some letters of Barillon, 3 Irish Stat. 9 Vill. m., c. 2. in 1687, show that James had intended 4 Parl. Hist. v. 1202. the repeal of the act of settlement. Dalrymple, 257, 263.

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IRELAND ARTICLES OF LIMERICK. 381 It appears from hence that at the end of the seventeenth century the Irish or AngloIrish catholics could hardly possess above one sixth or one seventh of the kingdom.1 They were still formidable from their numbers and their sufferings; and the victorious party saw no security but in a system of oppression, contained in a series of laws during the reigns of William and Anne, which have scarce a parallel in European history, unless it be that of the protestants in France, after the revocation of the edict of Nantes, who yet were but a feeble minority of the whole people. No papist was allowed to keep a school, or to teach any in private houses, except the children of the family.2 Severe penalties were denounced against such as should go themselves or send others for education beyond seas in the Romish religion; and, on probable information given to a magistrate, the burden of proving the contrary was thrown on the accused - the offence not to be tried by a jury, but by justices at quarter sessions.8 Intermarriages between persons of different religion, and possessing any estate in Ireland, were forbidden; the children, in case of either parent being protestant, might be taken from the other, to be educated in that faith.4

No papist could be guardian to any child; but the court of chancery might appoint some relation or other person to bring up the ward in the protestant religion.6 The eldest son, being a protestant, might turn his father’s estate in fee simple into a tenancy for life, and thus secure his own inheritance. But if the children were all papists, the father’s lands were to be of the nature of gavelkind, and descend equally among them.

Papists were disabled from purchasing lands except for terms of not more than thirty-one years, at a rent not less than two thirds of the full value. They were even to conform within six months after any title should accrue by descent, devise, or settlement, on pain of forfeiture to the next protestant heir - a provision which seems intended to exclude them from real property altogether, and to render the others almost supererogatory.6 Arms, says the poet, remain to the plundered; I [Vide supra. But of cultivable lands, pressure of the penal laws, which induced if their forfeitures are to be reckoned in men to sell their lands.

-1845.] these alone, they may have retained 2 7 Will. III., c. 4. about one fifth. As their freehold prop-a Id. erty at the time of the union was very 4 9 Will. m., c. 3; 2 Anne, c. 6. much less than this, we must attribute 5 9 Will. III., c. 3; 2 Anne, c. 6. the difference partly to the conversion of 6 9 Will. III.. c. 3; 2 Anne, c. 6. the wealthier families, and partly to the

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382 DEPENDENCE OF THE IRISH CHAP. XVI11. but the Irish legislature knew that the plunder would be imperfect and insecure while arms remained: no papist was permitted to retain them, and search might be made at any time by two justices.’ The bare celebration of catholic rites was not subjected to any fresh penalties; but regular priests, bishops, and others claiming jurisdiction, and all who should come into the kingdom from foreign parts, were banished on pain of transportation in case of neglecting to comply, and of hightreason in case of returning from banishment. Lest these provisions should be evaded, priests were required to be registered; they were forbidden to leave their own parishes, and rewards were held out to informers who should detect the violations of these statutes, to be levied on the popish inhabitants of the country.2 To have exterminated the catholics by the sword, or expelled them, like the Moriscoes of Spain, would have been little more repugnant to justice and humanity, but incomparably more politic. It may easily be supposed that no political privileges would Dependence be left to those who were thus debarred of the of the Irish common rights of civil society. The Irish parliaEnglish ment had never adopted the act passed in the fifth parliament. of Elizabeth, imposing the oath of supremacy on the members of the commons. It had been fill of catholics under the queen and her two next successors. In the second session of 1641, after the flames of rebellion had enveloped almost all the island, the house of commons were induced to exclude, by a resolution of their own, those who would not take that oath; a step which can only be judged in connection with the general circumstances of Ireland at that awful crisis.8 In the parliament of 1661 no catholic, or only one, was returned; 4 but the house addressed the lords-justices to issue a commission for administering the oath of supremacy to all its members. A bill passed the commons in 1663 for imposing that oath in future, which was stopped by a prorogation; and the duke of Ormond seems to have been adverse to it.6 An act of the English parliament after the Revolution, reciting that “great disquiet and many dangerous attempts 1 7 W. III., c.

5. 4 Leland says none; but by lord Or2 9 W. III., c. 1; 2 Anne, c. 3, s.

7; 8 rery’s Letters, i. 35, it appears that one Anne, c. 3. papist and one anabaptist were chosen 3 Carte’s Ormond, i. 328; Warner, 212. for that parliament, both from Tuam. These writers censure the measure as 5

Mountmorres, i. 158. illegal and impolitic.

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TIRLAND. UPON THE ENGLISH PARLIAMENT. 383 have been made to deprive their majesties and their royal predecessors of the said realm of Ireland by the liberty which the popish recusants there have had and taken to sit and vote in parliament,” requires every member of both houses of parliament to take the new oaths of allegiance and supremacy, and to subscribe the declaration against transubstantiation before taking his seat.’ This statute was adopted and enacted by the Irish parliament in 1782, after they had renounced the legislative supremacy of England under which it.

had been enforced. The elective franchise, which had been rather singularly spared in an act of Anne, was taken away from the Roman catholics of Ireland in 1715, or, as some think, not absolutely till 1727.2 These tremendous statutes had in some measure the effect which their framers designed. The wealthier families, against whom they were principally levelled, conformed in many instances to the protestant church.3 The catholics were extinguished as a political body; and, though any willing allegiance to the house of Hanover would have been monstrous, and it is known that their bishops were constantly nominated to the pope by the Stuart princes,4 they did not manifest at any period, or even during the rebellions of 1715 and 1745, the least movement towards a disturbance of the government. Yet for thirty years after the accession of George I. they continued to be insulted in public proceedings under the name of the common enemy, sometimes oppressed by the enactment of new statutes, or the stricter execution of the old; till in the latter years of George II. their peaceable deportment, and the rise of a more generous spirit among the Irish protestants, not only sheathed the fangs of the law, but elicited expressions of esteem from the ruling powers, which they might justly consider as the pledge of a more tolerant 1 Ibid. 3 W. & M.

c. 2. law, from the top to the bottom, is almost 2 Mountmorres, i. 163.

Plowden’s Hist. wholly in the hands of these converts.” Review of Ireland, i. 263. The terrible 4 Evidence of State of Ireland in Sesact of the second of Anne prescribes only sions of 1824 and 1825, p. 325 (as printed the oaths of allegiance and abjuration for for Murray). In a letter of the year voters at elections, ~ 24. 1755, from a clergyman in Ireland to 3

Such conversions were naturally dis-archbishop Herring, in the British Mutrusted. Boulter expresses alarm at the seum( Sloane MSS. 4164, 11), this is also number of pseudo-protestants who prac-stated. The writer seems to object to a tised the law; and a bill was actually repeal of the penal laws, which the cathpassed to disable any one, who had not olics were supposed to be attempting; professed that religion for five years, and says they had the exercise of their from acting as a barrister or solicitor. religion as openly as the protestants, and Letters, i. 226. “

The practice of the monasteries in many places.

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384 DEPENDENCE OF THE IRISH CHAP. XVIII. policy. The mere exercise of their religion in an obscure manner had long been permitted without molestation.1 Thus in Ireland there were three nations, the original natives, the AngloIrish, and the new English; the two former catholic, except some, chiefly of the upper classes, who had conformed to the church; the last wholly protestant. There were three religions, the Roman catholic, the established or Anglican, and the Presbyterian; more than one half of the protestants, according to the computation of those times, belonging to the latter denomination.2 These, however, in a less degree were under the ban of the law as truly as the catholics themselves; they were excluded from all civil and military offices by a test act, and even their religious meetings were denounced by penal statutes. Yet the house of commons after the Revolution always contained a strong presbyterian body, and being unable, as it seems, to obtain an act of indemnity for those who had taken commissions in the militia, while the rebellion of 1715 was raging in Great Britain, had recourse to a resolution, that whoever should prosecute any dissenter for accepting such a commission is an enemy to the king and the protestant interest.3 They did not even obtain a legal toleration till 1720.4 It seems as if the connection of the two islands, and the whole system of constitutional laws in the lesser, subsisted only for the sake of securing the privileges and emoluments of a small number of ecclesiastics, frequently strangers, who rendered very little return for their enormous monopoly. A great share, in fact, of the temporal government under George II. was thrown successively into the hands of two primates, Boulter and Stone: the one a worthy but narrow-minded man, who showed his egregious ignorance of policy in endeavoring to promote the wealth and happiness of the people, whom he at the same time studied to depress and discourage in respect of political freedom; the other an able, but profligate and ambitious statesman, whose name is mingled, as an object of 1 Plowden’s Historical Review of State majority of protestants in Ireland; but of Ireland, vol. i. passim. their proportion has probably diminished 2 Sir William Petty, in 1672, reckons since the beginning of the eighteenth the inhabitants of Ireland at 1,100,000; century. [It appears by a late census, of whom 200,000 English, and 100,000 in 1837, that the established church reckScots; above half the former being of oned near 800,000 souls, the presbyterithe established church. Political Anat-ans 660,000; the catholics were above six omy of Ireland, chap. ii. It is some-millions. 1845.] times said in modern times, though er-3 Plowden. 243. roneously, that the presbyterians form a 4 Irish Stat. 6 G. I., c. 6.

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IRELAND. UPON THE ENGLISH PARLIAMENT. 385 odium and enmity, with the first great struggles of Irish patriotism. The new Irish nation, or rather the protestant nation, since all distinctions of origin have, from the time of the great rebellion, been merged in those of religion, partook in large measure of the spirit that was poured out on the advocates of liberty and the revolution in the sister kingdom. Their parliament was always strongly whig, and scarcely manageable during the later years of the queen. They began to assimilate themselves more and more to the English model, and to cast off by degrees the fetters that galled and degraded them. By Poyning’s celebrated law, the initiative power was reserved to the English council. This act, at one time popular in Ireland, was afterwards justly regarded as destructive of the rights of their parliament, and a badge of the nation’s dependence. It was attempted by the commons in 1641, and by the catholic confederates in the rebellion, to procure its repeal, which Charles I. steadily refused, till he was driven to refuse nothing. In his son’s reign it is said that “the council fiamed bills altogether; a negative alone on them and their several provisoes was left to parliament; only a general proposition for a bill by way of address to the lord lieutenant and council came from parliament; nor was it till after the revolution that heads of bills were presented; these last in fact resembled acts of parliament or bills, with only the small difference of’

We pray that it may be enacted,’ instead of’ Be it enacted.’ “1 They assumed about the same time the examination of accounts, and of the expenditure of public money.2 Meanwhile, as they gradually emancipated themselves from the ascendency of the crown, they found a more formidable power to contend with in the English parliament. It was acknowledged, by all at least of the protestant name, that the crown of Ireland was essentially dependent on that of England, and subject to any changes that might affect the succession of the latter. But the question as to the subordination of her legislature was of a different kind. The precedents and authorities of early ages seem not decisive; so far as they extend, they rather countenance the opinion that English statutes 1 Mountmorres, ii. 142. As one house of conferences, which were consequently. could not regularly transmit heads of much more usual than in England. Id bills to the other, the advantage of a joint 179. recommendation was obtained by means 2 Id. 184. VOL. III. 25

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886 DEPENDENCE OF THE IRISH. CHAP. XVIII. were of themselves valid in Ireland. But from the time of Henry VI. or Edward IV. it was certainly established that they had no operation, unless enacted by the Irish parliament.1 This, however, would not legally prove that they might not be binding, if express words to that effect were employed; and such was the doctrine of lord Coke and of other English lawyers. This came into discussion about the eventful period of 1641. The Irish in general protested against the legislative authority of England as a novel theory which could not be maintained; 2 and two treatises on the subject, one ascribed to lord chancellor Bolton, or more probably to an eminent lawyer, Patrick Darcy, for the independence of Ireland, another, in answer to it, by sergeant Mayart, may be read in the Hibernica of Harris.8 Very few instances occurred before the Revolution wherein the English parliament thought fit to include Ireland in its enactments, and none perhaps wherein they were carried into effect. But after the Revolution several laws of great importance were passed in England to bind the other kingdom, and acquiesced in without express opposition by its parliament. Molyneux, however, in his celebrated’ Case of Ireland’s being bound by Acts of Parliament in England stated,’ published in 1697, set up the claim of his country for absolute legislative independency. The house of commons at Westminster came to resolutions against this book; and, with their high notions of parliamentary sovereignty, were not likely to desist from a pretension which, like the very similar claim to impose taxes in America, sprung in fact from the semi-republican scheme of constitutional law established by means of the revolution.4 It is evident that while the sovereignty and enacting power was supposed to reside wholly in the king, and only the power of consent in the two houses of parliament, it was much less natural to suppose a control of the English legislature over other dominions of the crown, having their own representa1 Vide supra. questing him to prevent anything of the 2 Carte’s Ormond, iii. 55. like kind in future. In this address as 3 Vol. ii. Mountmorres, i. 360. first drawn, the legislative authority of 4 Journals, 27th June, 1698. Parl. the kingdom of England is asserted. But Hist. v. 1181. They resolved at the same this phrase was omitted afterwards, I pretime that the conduct of the Irish parlia-sume, as rather novel; though by doing ment, in pretending to reenact a law so they destroyed the basis of their propmade in England expressly to bind Ire-osition, which could stand much better land, had given occasion to these danger-on the new theory of the constitution ous positions. On the 30th of June they than the ancient. addressed the king in consequence, re

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IRELAND. UPON THE ENGLISH PARLIAMENT. 387 tion for similar purposes, than after they had become, in effect and in general sentiment, though not quite in the statute-book, coordinate partakers of the supreme authority.

The Irish parliament, however, advancing as it were in a parallel line, had naturally imbibed the same sense of its own supremacy, and made at length an effort to assert it. A judgment from the court of exchequer in 1719 having been reversed by the house of lords, an appeal was brought before the lords in England, who affirmed the judgment of the exchequer.

The Irish lords resolved that no appeal lay from the court of exchequer in Ireland to the king in parliament in Great Britain; and the barons of that court, having acted in obedience to the order of the English lords, were taken into the custody of the black rod. That house next addressed the king, setting forth their reasons against admitting the appellant jurisdiction. But the lords in England, after requesting the king to confer some favor on the barons of the exchequer who had been censured and illegally imprisoned for doing their duty, ordered a bill to be brought in for better securing the dependency of Ireland upon the crown of Great Britain, which declares ” that the king’s majesty, by and with the advice and consent of the lords spiritual and temporal, and commons of Great Britain, in parliament assembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the people and the kingdom of Ireland; and that the house of lords of Ireland have not, nor of right ought to have, any jurisdiction to judge of, reverse, or affirm any judgment, sentence, or decree given or made in any court within the said kingdom; and that all proceedings before the said house of lords upon any such judgment, sentence, or decree, are, and are hereby declared to be, utterly null and void, to all intents and purposes whatsoever.” 1 The English government found no better method of counteracting this rising spirit of independence than by bestowing the chief posts in the state and church on strangers, in order to keep up what was called the English interest.2 This 1 6 G. I., c. 5. Plowden, 244.

[There early as 1644, and appeals in equity from was some opposition made to this bill by 1661. Mountmorres, i. 339. The Englord Molesworth, and others not so much lish peers might have remembered that connected as he was with Ireland: it their own precedents were not much passed by 140 to 83. Parl. Hist. vii. 642. older. -1845.] The Irish house of. lords had, 2

See Boulter’s Letters, passim. His however, entertained writs of error as plan for governing Ireland was to send

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388 PATRIOTIC PARTY IN 1753. CHAP. XVII1. wretched policy united the natives of Ireland in jealousy and discontent, which the latter years of Swift were devoted to inflame. It was impossible that the kingdom should become, as it did under George II., more flourishing through its great natural fertility, its extensive manufacture of linen, and its facilities for commerce, though much restricted, the domestic alarm from the papists also being allayed by their utter prostration, without writhing under the indignity of its subordination; or that a house of commons, constructed so much on the model of the English, could hear patiently of liberties and privileges it did not enjoy. These aspirations for equality first, perhaps, broke out into audible Growth of a patriotic complaints in the year 1753. The country was in iyi m so thriving a state that there was a surplus revenue after payment of all charges. The house of commons determined to apply this to the liquidation of a debt. The government, though not unwilling to admit of such an application, maintained that the whole revenue belonged to the king, and could not be disposed of without his previous consent. In England, where the grants of parliament are appropriated according to estimates, such a question could hardly arise; nor would there, I presume, be the slightest doubt as to the control of the house of commons over a surplus income. But in Ireland the practice of appropriation seems never to have prevailed, at least so strictly;1 and the constitutional right might perhaps not unreasonably be disputed. After long and violent discussions, wherein the speaker of the commons and other eminent men bore a leading part on the popular side, the crown was so far victorious as to procure some motions to be carried, which seemed to imply its authority; but the house took care, by more special applications of the revenue, to prevent the recurrence of an undisposed surplus.2 From this era the great parliamentary history of Ireland begins, and is terminated after half a century by the Union: a period fruitful of splendid eloquence, and of ardent, though not always uncompromising, patriotism, but which, of course, is beyond the limits prescribed to these pages. over as many English-born bishops as ness here” (i. 238). This of course dispossible. “The bishops,” he says, “are gusted the Irish church.

the persons on whom the government 1 Mountmorres, i. 424. must depend for doing the public busi-2 Plowden, 306 et post. Hardy’s Life of Lord Charlemont.

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INDEX. %* The Roman Numerals refer to the Volumes - the Arabic Figures to the Paget o1 each Volume. ABBEY LANDS. ALMANZA. ABBEY LANDS. appropriation of them con-iii. 174 and note 2 severity of its pensidered, i. 86, 91, note 1 -lawfulness of alties, ib. -not carried into effect, 175. seizing, 87 - distribution of, 89-re- Act of Settlement, iii. 176 limitations tained by the parliament under Mary, of the prerogative contained in it, 17890-increase the power of the nobil-remarkable cause of the fourth remeity, &c., 90, 91-charity of the early dial article, 180 -its precaution against possessors of, 91, 92-confirmed by the influence of foreigners, 184 and the pope to their new possessors, 114. note 2

-importance of its sixth article, Abbot (George, archbishop of Canter-ib.

bury) sequestered, i. 407 and note 2 - Act of Toleration, a scanty measure of his Calvinistic zeal, ii. 59-Popish religious liberty, iii. 169. tracts in his library, 70, note 4. Act against wrongous imprisonment in Abbots, surrenders of, to Henry VIII. Scotland, iii. 320. probably unlawful, i.

84-seats of, in Act for settlement of Ireland, iii. 375parliament, and their majority over its insufficiency, 377. the temporal peers, 85 and note 2. Act of explanation, iii. 377. Abjuration, oath of, clause introduced Acts, harsh, against the native Irish in into, by the tories.

iii. 187, note. settlement of colonies, iii. 363. Abolition of military tenures, ii. 298. Acts replacing the crown in its prerogaAct of Indemnity, ii. 291 - exclusion of tives, ii. 313. See Bills and Statutes. the regicides from the, ib. commons Adamson, archbishop of St. Andrews, vote to exclude seven, yet add several obliged to retract before the general more, 292, and notes 1, 2, 3 4 assembly of the church of Scotland, iii.

Act of Uniformity, ii. 323-clauses 303. against the presbyterians, 324-no Addresses, numerous servile, from all person to hold any preferment in Eng-parties to James II., iii. 76 and note 3. land without episcopal ordination, ib. Administration of Ireland, in whom and note 1 -every minister compelled vested, iii. 339. to give his assent to the Book of Com-Adultery, canon laws concerning, i. 112, mon Prayer on pain of being deprived note. of his benefice, ib. and note 2-school- Agitators established in every regiment, masters obliged to subscribe to, 325. ii.

204. Act for suppressing conventicles, ii. 332-Aix-la-Chapelle, peace of, ii. 357. 888-opposed by bishop Wilkins, ib. Alienation, ancient English laws on, i. - supported by Sheldon and others, 27. ib. Allegiance, extent and power of, i. 804, Act of Supremacy, particulars of the, ii. note i.

373. Allegiance, oath of, administered to paAct of Security, persons eligible to par-pists under James I.,i. 397. liament by the, iii. 186 and note t-in Allen (  ), his treacherous purposes Scotland, 323. against Elizabeth, i. 150 and note 2. Act of 1700 against the growth of popery, Almanza, battle of, iii. 227.

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390 INDEX. ALTARS. ASSOCIATION. Altars removed in churches, i. 98. Army, proposals of the, to king Charles Alva (duke of) his designed invasion of I. at Hampton-court, ii. 203-rejected England, i. 141 and note 2, 146. by him, 204-innuovating spirit in, 212 Ambassadors, exempt from criminal proc- - publishes a declaration for the setess, i. 166-extent of their privilege tlement of the nation, 214 - principal examined, ib., note 1.

officers of, determine to bring the king Andrews (Dr. Launcelot, bishop of Win-to justice, 216 and note 3, 217. chester), his sentiments on transub-Army disbanded, ii. 300-origin of the stantiation, ii. 66, note 2

-singular present, 301. phrase in his epitaph, 67, note 1. Army, great, suddenly raised by Charles Anecdotes, two, relating to king Charles II., ii. 380, 381, and note 2. I. and Cromwell, ii. 205, note 2, Army, intention of James II. to place Anglesea (lord privy seal), statement of, the, under the command of catholic in the case of lord Danby, ii. 391, officers, iii. 59. note 2. Army, standing, Charles II.?s necessity Anglican church, ejected members of, for, ii. 361-its illegality in time of their claims, ii. 303. peace. iii. 107 and note 2. (See StandAnjou (duke of), his proposed marriage ing army) -Apprehensions from it, with queen Elizabeth, i. 133, note i, 143, 251. 233, note 1. Army reduced by the commons, iii. 139. Anne (princess of Denmark), her repen-Army recruited by violent means, iii. 208 tant letter to James II., iii. 124, note 1 and note s. - a narrow-minded, foolish woman, Array, commissions of, ii. 132. ib. -her dark intrigues with the court Arrest, exemption from, claimed by the of St. Germain’s, ib. house of commons, i. 267, 271 -
parliaAnne (queen of Great Britain), her inca-mentary privilege of exemption from, pacity for government, iii. 203 her 299. confidence in Godolphin and Marlbo-Articles, lords of the, their origin and rough, ib.

revolutions in her min-power, iii. 293-regularly named in istry, ib. 204

alarmed at the expedi-the records of every parliament from tion of the pretender, 215-her secret the reign of James IV., 295 what intentions with respect to the pretender they propounded, when ratified by the never divulged, 219 and note 1-her three estates, did not require the king’s death, 222. consent to give it validity, 298 abolAppeals in civil suits in Scotland lay ished, 320. from the baron’s court to that of the Articles of the church of England, real sheriff or lord of regality, and ulti-presence denied in the, i. 102-subsemately to the parliament, iii. 298.

quently altered, ib. and note 1-origiArgyle (earl of), refuses to subscribe the nal drawing up of the, 111 and note 1 test, iii. 315

-convicted of treason upon - brought before parliament, 195the statute of leasing-making, and es-statute for subscribing, ib. ministers capes, ib.

is executed after his re-deprived for refusing, 196, note 2. bellion upon his old sentence, ib. Articles, thirty-nine, denial of any of the, Aristocracy, English, in Ireland, analogy made excommunication, i. 300, note 1. of, to that of Prance, iii. 336. Articles of the church on predestination, Aristocracy of Scotland, influence of the, i. 391. in the reign of James IV., iii. 297-Articuli Cleri, account of the, i. 319, 320.

system of repressing the, 298. Artillery company established. ii. 133.

Arlington (Henry Bennett, earl of), one Arundel (Thomas Howard, earl of), his of the Cabal, ii. 356 - obliged to change committal to the Tower, i.

371. his policy, 375. Arundel (Henry Howard, earl of), his Arminian controversy, view of the, i. case in parliament, iii. 41, note 1. 392-395
and notes. Ashby, a burgess of Aylesbury, sues the Arms, provided by freeholders, &c., for returning officer for refusing his vote, defence of the nation, ii. 132, note 3. iii. 264. Armstrong (sir Thomas), given up by Ashley (Anthony, lord, afterwards earl the States, and executed without trial, of Shaftesbury), one of the Cabal, ii. ii. 435. 356. Army, conspiracy for bringing in, to Ashley (sergeant), his speech in favor of overawe the parliament, ii. 125 and prerogative, i. 382, note 1. note 2.

Ashton (John), remarks on his conviction Army of Scotland enters England, ii. for hightreason on presumptive evi165. dence, iii. 158. Army, parliamentary, new modelled, ii. Association abjuring the title of James 178-advances towards London, 200. II., and pledging the subscribers to ro

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INDEX. 391 ATKINSON. BELARMTNE. venge the death of William III., gener-terbury, endeavors to increase the eoally signed, iii. 130 and note 1.

clesiastical jurisdiction, i. 320, 321, and Atkinson (- ), his speech in the house note 1 - puritan clergymen deprived of commons against the statute for the by, 386 and note 1 - defence of episqueen’s power, i. 125
and note 1. copacy, 387 and note 1. Attainders against Russell, Sidney, Cor-Bangorian controversy, iii. 238 -characnish, and Armstrong, reversed, iii. 157. ter of it, ib. and note 1. Atterbury (Dr.), an account of his book Bank of England, its origin and deprecientitled Rights and Privileges of an ation of its notes, iii. 134. English Convocation, iii. 236 pro-Banks (sir John), attorney-general, his moted to the see of Rochester, 237

- defence of the king’s absolute power, disaffection to the house of iHanover, ii. 27. 243 -deprived of his see, and banished Baptism by midwives abolished, i. 185 for life, ib. and note 2. note 3. Augsburg Confession, consubstantiation Barebone’s parliament, ii. 234-apply acknowledged in the, i. 100. themselves with vigor to reform abuses, Augsburg, league of, iii. 89. ib. - vote for the abolition of the court Aylmer (John. bishop of London), his of chancery, ib.- alarm the clergy, ib. persecution of papists, i. 149, note 2- - surrender their power to Cromwell, his covetousness and prosecution of the 235. puritans, i. 206
and note 2 - Eliza-Barillon (the French ambassador), favors beth’s tyranny to, 226, note 4-his the opposition, ii. 384, note 1-sums answer to Knox against female mon-given to members of parliament menarchy, 278-passage from his book on tioned by, 386-remarks on that corthe limited power of the English crown, ruption, ib. -suspicions against, 422 278, 279. - extract from, concerning an address from the commons to the king, iii. 66, Bacon (sir Francis, lord Verulam), his note 3. praise of the laws of Henry VII., i. Barnes (Dr. Thomas), appointed to do26-his error concerning the act of fend the marriage of Henry VIII. with benevolence, 29, note 2-his account Catherine of Aragon, i. 73, note 1. of causes belonging to the court of star-Baronets created by James I. to raise chamber, 67-his apology for the exe-money, i. 333 and note 1. cution of catholics. 169, note I his Barons of parliament, the title of, obcharacter of lord Burleigh, 206 -ex-jected to, i. 354, note 3. cellence and moderation of his Adver-Barons, English, their acquisitions in tisement on the Controversies of the Ireland, iii. 333. Church of England, 228 and note 1 _ Barrier treaty of lord Townshend, iii. 210. disliked agreeing with the house of Baxter, extract from his Life, descriptive lords on a subsidy, 275-his advice to of the episcopalians of his day, ii. 306, James I. on summoning a parliament, note 1 333 acquainted with the particulars Beal ( - ), his book against the eccleof Overbury’s murder, 246 and note 2 siastical system of England, i. 154, -impeached for bribery, 352 - exten-note 1. nation of, ib., note 2 his notice of the Beauchamp (William Seymour, lord) puritans, 387, note 1 - recommends honors of his family restored to, i. 29d mildness towards the papists, 399, and note 2. note 1. Bedford (Francis Russell, second earl of), Bacon (sir Nicholas), great seal given to, imprisoned under queen Mary, on aci.

119, note labilities of, 119-sus- count of his religion, i. 113. pected of favoring the house of Suffolk, Bedford (Francis Russell, fourth earl of), 136 his reply to the speaker of the plan to bring back popular leaders house of commons, 252. frustrated by his death, ii. 120 and Baillie (Robert), his account of the re-note 3. ception and impeachment of the earl Bedford (William Russell, fifth earl of), of Strafford in England, ii. 105, note 1 joins king Charles I. at Oxford, ii. 157 Ball (bishop of Ossory), persists in being -is ill received, ib. - returns to the consecrated according to the protestant parliament, ib. form, iii.

350, note 1. Beggars caused by the alms of monas. Ballot, the, advocated in the reign of teries, i. 91-statute against giving to, Anne, iii. 198, note 2. 92, note 1. Balmerino (lord), tried for treason on the Bell (Mr.) his attack on licenses, i. 254 Scottish statute of leasing-making, iii. -
elected speaker, ib. and note 5. 310. Bellarmine (Cardinal Robert), opposes Bancroft (Richard), archbishop of Can-the test-oath of James I., i. 398.

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392 INDEX. BELLAY. BOLINaBROKE. Bellay (Joachim du, bishop of Bayonne), of, under Elizabeth, 226 and note 3reports that a revolt was expected in tyranny of the queen towards them, England on the divorce of Henry V II., ib. and note 4 -conference of with the i. 79. puritans at Hampton Court, 294-proBenefices, first-fruits of, taken from the ceedings of the, against the puritans, pope, i. 78. 386-jurisdiction of the, ii. 52 and Benevolence, exaction so called, in 1545, note 1 - moderate government of, proi. 38-consequences of refusing to posed, 115, 116, and notes 1, 2, 3-procontribute to it, 39-taken by queen ceedings on abolishing, 116

excluded Elizabeth, 244 and note 2. from parliament, 118 and note i-reBenevolences, oppression of, under Ed-flections on that measure, 118.

119ward IV.. i. 29 - abolished under impeachment of the twelve, 141, note 3 Richard III., and revived by Ienry -restored to their seats in the house VII., ib. -granted by private persons: of lords, 314 -their right of voting ib., note 2-required under James I., denied bv the commons, in the case of 336. lord Danby, 392 - discussion of the Benison (- ), his imprisonment by same, 393-restored to Scotland after bishop Aylmer, i.

205. six years’ abolition, iii. 306-and to Bennet (Dr.), his proposal on the divorce part of their revenues, 307-their proof Henry VIII., i. 78, note 1 testations against any connivance at Bennet ( - ), an informer against pa-popery, 367, note 2. pists, j. 160, note 1. Bishops, popish, endeavor to discredit Berkley (sir John), justice of the king’s the English Scriptures, i. 94, note 1bench, defends ship-money, ii. 24 and refuse to officiate at Elizabeth’s cornote 1 - and the king’s absolute power, onation, 119 and note 1-deprived 28 -parliamentary impeachment of, under Elizabeth, 120 their subse139, note 1. quent treatment, 123, 124.

Berkely (Charles, first earl of), his ad-Bishoprics despoiled in the reformation ministration in Ireland in 1670, iii. under Henry VIII., i.

104. 378. Black, one of the ministers of St. AnBerwick, right of election extended to, drew’s. summoned before the privy by Henry VIII., iii. 44.

council of Scotland, iii. 305. Best (Paul), ordinance against, for writing Blackstone (sir William), his misunderagainst the Trinity, ii. 196, note 1. standing of the statute of allegiance, Bible, 1535, church translation of the, 11th Henry VII., i. 25, note 2-inadproscribed. i. 94-liberty of reading, vertent assertion of, ii. 423. procured by Cromwell, and recalled by Blair (sir Adam), impeached for highHenry VIII., ib. and note 1.

treason, ii. 423. Bill of exclusion drawn in favor of the Bland ( - ), fined by authority of duke of York’s daughters, ii. 409-of parliament, i.

272. rights. iii. 106-of indemnity, 113-Blount (John), sentenced by the lords to for regulating trials upon charges of imprisonment and hard labor in Bridehigh-treason, 159 - of 7th of queen well for life. iii. 270. Anne, affording peculiar privileges to Boleyn (Anne), her weakness of characthe accused, 161 to prevent occa-ter. i. 45, note 1-undoubted innosional conformity, passes the commons, cence of; her indiscretion; infamous and is rejected by the lords, 240-proceedings upon her trial; her levipassed by next parliament, ib.-re-ties in discourse brought as charges pealed by the whigs, 241 and note 2. against her; confesses a precontract Birch (Dr.

Thomas), confirms the genu-with lord Percy; her marriage with ineness of Glamorgan’s commissions, the king annulled, 46-act settling ii. 188. the crown on the king’s children by, Birth of the pretender, suspicions at-or any subsequent wife, 48 -time of tending the, iii. 85, 86. her marriage with Henry VIII. conBishops of England, authority of the sidered, 74. note 2-interested in the pope in their election taken away, i. reformed faith, 80. 79-their adherence to Rome the cause Bolingbroke (Henry St. John, lord), reof their abolition by the Lutherans, 110 markable passage in his Letters on -less offensive in England than Ger-History, ii. 364, note 2-engaged in many, ib. - defend church property correspondence with the pretender, iii. in England, ib. some inclined to the 217, 218, and note 1-impeached of puritans, 186-conference of with the hightreason, 225 —
his letters in the house of commons, 212-commons Examiner answered by lord Cowper, opposed to the. 213-puritans object 286. note 3-character of his writings, to their title, 225, note 1-character 286, 287.

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INDEX. 393 BOLTON. BURNET. Bolton (lord chancellor), his treatise on fusal of summons to, &c., i. 372 and the independence of Ireland, iii. 386. note l. Bonaght, usage of, explained, iii. 332. Bristol (George Digby, earl of), converted Bonaght and coshering, barbarous prac-to popery, ii.

328-attacks Clarendon, tice of, iii. 340. 348, note 1. Bonner (Edmund, bishop of London), his Brodie (Mr.), his exposure of the misreppersecution, 1. 107-treatment of by resentations of Hume, i. 382, note 1. Edward YI.‘s council, ib., note 2 - Browne (sir Thomas), his abilities, ii. 77. royal letter to, for the prosecution of Brownists and Barrowists, most fanatic heretics, 115, note 2 - imprisoned in of the puritans, i. 216 - emigrate to the Marshalsea, 126 denies bishop Holland, ib. -execution of, ib. and Horn to be lawfully consecrated. ib. note 3.

Books of the reformed religion imported Bruce (Edward), his invasion of Ireland, from Germany and Flanders, i. 93-iii. 342. statute against, ib., note 2-books Bucer (Martin), his permission of a conagainst the, queen prohibited by stat-cubine to the landgrave of Hesse, i. 80, ute, 145.

note 1-his doctrines concerning the Books, restrictions on printing, selling, Lord’s Supper, 101 - politic ambiguity possessing, and importing, i. 238, 239 of, ib., note 2-assists in drawing up and note-l, 2, 3, 4.

240 and note 1. the forty-two articles, 108, note 1 - Booth (sir George), rises in Cheshire in objected to the English vestments of favor of Charles II., ii. 265. priests, 112. Boroughs and burgesses, elections and Buckingham (Edward Stafford. duke of), wages of, under Elizabeth, i. 263
and his trial and execution under Henry note 1. VIII., i. 41 and note 1.

Boroughs, twenty-two created in the Buckingham (George Villiers, duke of), reign of Edward VI., i. 58 - fourteen his connection with lord Bacon’s imadded to the number under Mary, ib. peachment, i. 352 and note 2 -sets -
state of those that return members aside the protracted match with Spain, to parliament, iii. 42-fourteen created 363-deceit of, 338 and note 2-his by Edward VI., 44-twenty-one mem-impeachment, 370, 371-his enmity bers for. added by Mary, ib.-many to Spain, 399, 400, and notes 1, 2-his more by Elizabeth and James, ib. scheme of seizing on American goldBoroughs royal of Scotland, common mines, 399, note 2. usage of the, to choose the deputies of Buckingham (son of the preceding), one other towns as their proxies, iii. 295. of the cabal ministry, ii. 356 - driven Bossuet (Jacques), his invective against from the king’s councils. 375 -
adminCranmer, i. 108. istration of, during the reign of Charles Boucher (Joan), execution and speech of, II., iii. 18. i. 106,107 and note 1

Buckingham (John Sheffield, duke of), Boulter, primate of Ireland. his great engaged in the interest of the preshare in the government of Ireland in tender, iii. 217, 218, note 1. the reign of George II., iii. 384-his Bull of Pius V. deposing Elizabeth, i. 144 character, ib. - prohibited in England by statute, ib. Bound (Dr.), founder of the Sabbatarians, Bullinger (Henry) objected to the Engi. 389, note 1. lish vestments of priests, i. 112. Boyne, splendid victory of the, gained by Buonaparte (Napoleon), character of, William 11I., iii. 380. compared with that of Oliver Cromwell, Brady (Dr. Thomas), remarks on his ii. 252-254, and note 1. writings, ii. 438-on his treatise on Burchell (Peter), in danger of martial law boroughs, iii. 47. under Elizabeth, i. 241 and note 1. Brehon, customs of. murder not held Burgage tenure, iii. 42 -opinion of the felony by the, iii. 330 and note 1. author concerning ancient, 46, 47. Brewers complain of an imposition on Burgesses, wages of boroughs to, i. 263, malt, i. 356, note 1 - proclamation note 1 - debate on non-resident, in the concerning, ii. 31. house of commons, 264. Bribery, first precedent for a penalty on, Burgundy (duke of), effect of his death i. 266-impeachments for, 351-prev- on the French succession, iii. 212. alent in the ccurt of Charles II., ii. 339 Burnet (Dr. Gilbert, bishop ot Salisbury), -its prevalence at elections. iii. 49. denies the answer of Ienry VIII. to Bridgeman (sir Orlando), succeeds Clar-Luther, i. 72, note ~-and the king’s endon, ii. 356. bribery of the universities on his diBrihuega, seven thousand English under vorce, 74. note  his doubts on the Stanhope surrender at, iii. 209. time of Anne Boleyn’s marriage, ib., Bristol (John, lord Digby, earl of), re-note 2 -his valuation of the suppressed

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394 INDEX. BUITON. CECIL. monasteries, 88-his bbserrations on Duke of Ormond, 372, note 1-the the persecutions of Mary, 116, note 1 fullest writer on the Irish rebellion, ib. -anecdote related by, ii. 347, note -_

Carte and Leland, their account of the his remarkable conversation with Ben-causes of the rebellion in Ireland in tinck, iii. 101, note 1 -remark of, on the 1641, iii. 373, note 2. statute for regulating trials in cases of Cartwright (Thomas), founder of the puhigh-treason, 161. ritans, i.

189-his character, ib. -his Burton (Henry), and Edward Bastwick, Admonition, 190-his opposition to prosecuted by the star-chamber, ii. 44.

civil authority in the church, ib. -his Bushell, a juryman, committed for non-probable intent of its overthrow, 191, payment of his fine imposed on him in note 1-design of his labors, 192the case of Penn and Mead, iii. 16.

objected to the seizure of church propButler (Mr. Charles), his candid charac-erty, ib., note 1-summoned before the ter of Cranmer, i. 109, note 2 - his dis-ecclesiastical commission, 210-disapcussion of the oath of supremacy, 121, prc-ed of the puritan libels, ib. - asnote 1. sertions of, concerning Scripture, 218, note 1. Cabal ministry, account of the, ii.

356. Catherine of Aragon, queen of Henry Cabinet council, question of its responsi-VIII., his marriage with her, and bility, iii. 181 and note 1

-members cause of dislike, i. 73 and note 1, 74of the, answerable for the measures divorce from, 74-feelings of the naadopted by its consent, 183.

tion in her favor, 79. Calais, right of election extended to, iii.

Catholic religion, presumption of the es44. tablishment of, ii. 362

remarks on Calamy (Edmund), irregularly set at lib-James II.‘s intention to reestablish, iii erty by the king’s order, ii. 331. 57-60. Calvin (John), adopts Bucer’s doctrine Catholics, laws of Elizabeth respecting on the Lord’s Supper, i. 102 and note 2 the, i. chap. iii. 117-17-4-a proud -malignity of, 106-objected to the and obnoxious faction in the reign of English vestments of priests, 112. Charles I., ii. 167 - natural enemies to Calvinism in England, i. 392-394, and peace, ib. - hated by both parties, 172 note 2. -Charles I. gave much offence by acCalvinists, severe act against the, ii. 333. cepting their proffered services, ib. -

Cambridge University, favorable to prot-promises of Charles II. to, 326-Loyestantism, i. 188. alty of, 327 - Charles II.‘s bias in favor Camden (William, Clarenceux king of of, 328 -laws against, enforced in Irearms), remarks of, concerning Eliza-land, iii. 359-claim the reestablishbeth’s appointment of a successor, i. ment of their religion, 374-aim at 134, note 1 revoking the act of settlement, 379Cameronian rebellion, iii. 314 -
the Cam-their hopes under Charles II. and James eronians publish a declaration renounc-II., ib. - their possessions at the end of ing their allegiance to Charles II., 315. the seventeenth century, 381 - severity Campian (Edmund), executed for popery, of the laws against them during the i. 152-his torture justified by lord reigns of William III. and Anne, ib.Burleigh, 156. severe penalties imposed upon them, ib. Canon laws, commissioners appointed for Cavaliers, ruined, inadequate relief voted framing a new series, i. 110, note 2, 111, to, ii. 310. note  character of the canons, which Cavendish (Richard), proceedings conwere never enacted, ib. - amendments cerning his office for writs, i. 277, note 2.

of, attempted, 194. Cecil, William (lord Burleigh), his great Canons, ecclesiastical, new code of, under talents, i. 119-paper of, on religious James I., i. 300 and notes 1, 2-de- reform, ib., note 2 his memoranda sonfending the king’s absolute power, 317, cerning the debates on the succession 318 and note. under Elizabeth, 134, note 1-his conCardwell’s ”’ Annals of the Church,” re-duct concerning Elizabeth’s marriage, marks upon a passage in, i 387, note 1. 132-arguments of, relating to the Carleton (sir Dudley), his unconstitu-archduke Charles and the earl of tional speech on parliaments, i. 370, Leicester, ib., note 2-procures an asnoe 1. trological judgment on her marriage Came (sir Edward), ambassador at Rome, with the duke of Anjou, ib., note 3to queen Mary, i. 118 and note 1. favors her marriage with the archduke Carte (Thomas), his censure of the char-Charles, 133, note 2-suspected of faacter, &c. of queen Mary.

i. 115, note 1 voring the house of Suffolk, 136 and -his anecdotes of Godolphin and Har-note 2-memorandum of, concerning ley, iii. 214, note 3-his Life of the the queen of Scots, 140-fears of, con

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INDEX. 39 CECIL CHARLES I. cerning the nation 14Z-his proceed- - his proclamations, 31-proceedings ings against Mary Stuart restrained by against the city, 32 offer of London Elizabeth, 146-pamphlets of, in de-to build the king a palace, 34, note 1fence of Elizabeth, 155, 156, and note 1 principal charges against his govern-answered by cardinal Allen, and ment, 3i-his court, &c., suspected supported by Stubbe, 156, note i-his of favoring popery, 63-65-supposed memorial on the oath of supremacy, to have designed restoration of church 157 -his advice for repressing of pa-lands, 70 attempts to draw him into pists, 158

-fidelity of his spies on Mary the Romish church, 74-aversion to queen of Scots, 162-continues his se-calling a parliament, 89 -vain endeavverity to the papists, 173-his strict-or to procure a supply from. 91-disness over Cambridge University, 188, solved, 93-his means for raising note 2 -
averse to the severity of Whit-money, 94-summons the council of gift, 205-his apology for the puritans, York, ib. - assents to calling a parlia206 his constant pliancy towards ment, ib. -constitution of England Elizabeth, ib. - his spoliation of church under, from 1640-1642, chap. ix.

96property, 225-project of, for raising 149 his desire of saving Lord Stratmoney, 245 interests himself in at-ford, 109, note 1 - recovers a portion fairs of private individuals, 246 and of his subjects’ confidence, 120 his note 2-his policy in doing so, ib.- sincerity still suspected, 123-his atforesight the character of his adminis-tempt to seize members of parliament, tration, 247. 125, note 2,126, note I-effects of, on the Cecil, Robert (earl of Salisbury), his innation, 127-his sacrifices to the parnocence of the gunpowder conspiracy, liament, 134-nineteen propositions i. 396, note 3. offered to, 136-powers claimed by, in Celibacy of priests, its origin and evils the nineteen propositions, ib.-
comconsidered, i. 102 and note 2. parative merits of his contest with the Census of 1837, results of the, in Ireland, parliament, 137-149-his concessions iii. 384, note 2 important to his cause, 146-his inCeremonies, superstitious, abolished in tentions of levying war considered, 146, England, i. 97. note I - probably too soon abandoned Chambers (Richd.), proceedings against, the parliament, 147-149- his success for refusing to pay customs, &c., ii. 14. in the first part of the civil war, 152Chancery, court of, its practice concern-his error in besieging Gloucester, ib. -
ing charitable bequests, i. 91, note 1. affair at Brentford injurious to his repChancery, origin aild power of the court utation, 153 - his strange promise of i. 338-dispute on the extent of its to the queen, 154-denies the two jurisdiction, 339 - its abolition voted, houses the name of a parliament, 156ii. 234. Earls of Holland, Bedford, and Clare Chantries, acts for abolishing, i. 104-join, 157 - their bad reception, and redisposition of their revenues, ib. turn to the parliament, ib. -is inferior Charles I.,king of England), constitu-in substantial force, 158-yeomanry tion of England under, from 1625 1629, and trading classes general against i. chap. vii. 367-409- favorable fea-him, 165-remarks on the strength tures of his character, 367 and note 1 - and resources of the two parties, 166 succeeds to the throne in preparations -loses ground during winter, ib.for war, 368-privileges of parliament makes a truce with the rebel catholics, infringed by, 371, 372-determines to who are beaten at Namptwich, ib.dissolve it, 373 and note 2-demands success over Essex in the west, ib.a loan, and consequent tumult, 374 summons the peers and commons to and note 2-arbitrary proceedings of meet at Oxford, 167

vote of parliahis council, 374, 375, and note I - sum-ment summoning him to appear at mons a new parliament, 380 and note 1 Westminster, 168 - his useless and - his dislike to the petition of right, inveterate habit of falsehood, 173 and 881, 384 answer concerning tonnage note I -does not sustain much loss in and poundage, and prorogues the par-the west, 176 -
defeat of, at Naseby, 178 liament, 385 his engagement to the -observations on his conduct after his Spanish papists when prince of Wales, defeat, 178, 179 - surrenders himself 400, 401-conditions for his marriage to the Scots, 180-reflections on his with the princess Henrietta Maria, 402, situation, 181-fidelity to the Eng403 - view of his third parliament conlish church, 182 - thinks of escaping, pared with his character, 408-consti- 184 - imprudence of preserving the tution of England under from 1629-queen’s letters, which fell into the 1640, ii.

chap. viii. 9-95- declaration hands of parliament, 185 and note 3of, after the dissolution, 10 and note 1 disavows the power granted to Glamor

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396 INDEX. CHARLES n. CHICHESTER. gan, 188 is delivered up to the par-

-joins with Lo:lis to subvert Holland, liament, 190 - remarks on that event, ib. - confesses to Louis XIV.‘s ambasib., note 2, 191, note 1

-offers made by sador the national dislike to French the army to, 199-taken by Joyce, alliance, 366 his evasive conduct 200-treated with indulgence, 202-towards Louis XIV., ib. - hopes of his his ill reception of the proposals of the court, 368 -his prerogative opposed army at Hampton Court, 203-escapes by the commons, 372-complains to from Hampton Court, 206 -declines the lords of the opposition of the compassing four bills, 207 - placed in soli-mons, ib.- gives way to the public tary confinement, ib.- remarks on his voice about the suspension bill, ib.

trial, 216 - reflections on his execu-and note 2-compelled to make peace tion, character, and government, 218 with Holland, 376-his attachment to and note 2 - his innovations on the law French interests, ib. - receives money of Scotland, iii. 307, 308-his prom-from France, 380-his secret treaties ise of graces to the Irish, 366 his with France, 387 -his insincerity, ib. perfidy on the occasion, ib. state of  his proposal to Louis XIV. of a the church in Ireland in the reign of, league to support Sweden, 388 his 367 and note 2. death anxiously wished for by the Charles II. (king of England), seeks for-Jesuits, 401-his unsteadiness, 410 eign assistance, ii. 238 -attempts to and note 2-tells Hyde it will not be in interest the pope in his favor, 239 - his his power to protect the Duke of York, court at Brussels, 264-receives pledg-411 -his offers in the case of exclues from many friends in England, 265, sion, 413 implores the aid of Louis -pressed by the royalists to land in XIV. against his council and parliaEngland, 266-fortunate in making ment, 417-his dissimulation, 419no public engagements with foreign consultations against his government powers, 268-hatred of the army to, begin to be held, 430-his connection 274 his restoration considered immi-with Louis XIV. broken off. 441-his nent, early in the year 1660, 2r6 and death, 442 -no general infringements note  constitution of the convention of public liberty during his reign, iii. parliament greatly in his favor, 279, 9 - tyrannical form of his government 280and notes l, 2-his declaration from in Scotland, 312 state of the protesBreda, 291-proclamation soon after tants and catholics in Ireland at his landing, 293-reenters on the crown restoration, 375

-state, character, and lands, 295 - income settled on, 297-religion of the parties in Ireland at the character of, by opposite parties, 302
restoration of, ib.- his declaration for and note 3-promises to grant liberty the settlement of Ireland, ib. -claims of conscience, 303-his declaration in of the different parties, 376-not satfavor of a compromise, 306-violates isfactory to all concerned, ib.-dishis promise by the execution of Vane, gusted with the Irish agents, 377. 312-his speech to parliament con-Charles IX. (king of France), his persecerning the triennial act, 316-vio- cution of the protestant faith, i. 143. lates the spirit of his declarations, 326 Charles V. (emperor of Germany), his -wishes to mitigate the penal laws influence over the pope on Ienry against the catholics, 328 his incli-VIII.‘s divorce, i. 75-intercedes for nation toward that mode of faith, ib. the princess Mary to enjoy her religion, and note 1 - publishes a declaration in 106. favor of liberty of conscience, 33  Charles (archduke of Austria), a suitor private life of, 337 - commons jealous for the hand of Elizabeth, i. 131-148of his designs, 339-not averse to a Cecil’s arguments in his favor, 132, commission of inquiry into the public note 2-recognized as king of Spain, accounts, 341

- solicits money from iii. 205-elected emperor, 209. France, 352-intrigues with France, Charles Louis (elector palatine), suspect358-his desire of absolute power, ib. ed of aspiring to the throne, ii. 211, - complains of the freedom of political note 3. conversations, 359 - advice of some Charnock, one of the conspirators to ascourtiers to, on the fire of London, sassinate William III., iii. 130, note.

860-unpopularity of, 361-endeav- Chatelherault, verses displayed at the ors to obtain aid from France, 362 - entry of Francis II. at, i. 137, note 1. desires to testify publicly his adher-Chester, county of, right of election exence to the Romish communion, ib.- tended to. iii. 44. his conference with the duke of York, Chichester (sir Arthur, lord deputy), Clifford, and Arlington, for the ad-his capacity, iii. 362-the great colony vancement of the catholic faith, i. - of Ulster carried into effect by his his personal hatred to the Dutch, 365 means, ib., 363.

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INDEX. 397 CHIEFTAINS. CLERGY. Chieftains (Irish), compelled to defend and life, ib.. note 1 -imperfections and their lands, iii. 342. prejudices of the work, 81, 83, and notes, Chillingworth (Dr. William), his exami-88, note 2, 94, note 2 observations nation of popery, ii. 78 - effect of the on, 80, note 1 -against Monk, 276covenant upon his fortunes, 164.

resolution of, to replace the church in Cholmley (sir Henry), his letter to the its property at the Restoration, 296mayor of Chester, on a loan to queen his integrity, 310 and note 2-the prinElizabeth, i. 244, note 2.

cipal adviser of Charles II., 317 - prejChrist Church College, Oxford, endowed udices of, 319. note 1 - against any con. by Wolsey from the suppressed monas-cession to the catholics, 329  averse teries, i. 82. to some of the clauses in the Act of Church of England, view of, under Ienry uniformity, 330-his account of the VIII.. Edward VI., and queen Mary, i.

prevailing discontents of his time, 337, chap. ii. 70-116. note 1-inveighs against a proviso in Church ceremonies and liturgy disliked a money bill, 341 his bigotry to the by the reformers, i. 176-proposal for tory party, ib. - opposes the commisabolishing, 180, note 1 - concession of, sion of inquiry, 342 - clandestine marbeneficial, 182-irregularly observed riage of his daughter with the duke of by the clergy, ib.-

Elizabeth’s report-York, 344 and note 2decline of his ed offer of abolishing, 227, note 2. power, ib. - suspected of promoting Church of England, its tenets and homi-the marriage of Miss Stewart and the lies altered under Edward VI., i. 97-duke of Richmond, 346-his notions liturgy of, chiefly a translation of the of the English constitution, ib.Latin rituals, ib. and note 1 - images strongly attached to protestant prinremoved from, ib. and note2 -altars ciples, 347 will not favor the king’s taken down and ceremonies abolished designs against the established religion, in the, 98 principally remodelled by 348 coalition against, 348, 349 and Cranmer, 107-alterations in the, note 2 - his loss of the king’s favor, ib. under Elizabeth, 117, note 1 - its litur- - severity of his treatment, ib. - his gy amended, 120 and note 1 entirely impeachment, 349 - unfit for the govscparated from Rome, ib. - opposition ernment of a free country, ib. - articles of Cartwright to the, 191, note 1 - of his impeachment greatly exaggermoderate party of, the least numerous ated, 350-fears the hostility of the under Elizabeth, 193 -attack on, by commons, it.-charged with effecting Strickland, ib.-its abuses, 194-arthe sale of Dunkirk, 351 his close tides of, brought before parliament, ib. connection with France, 352 -conjec-innovations meditated in the, ii.

114-tares on his policy, ib - advises 118, and notes -parliamentary orders Charles to solicit money from France, for protecting, 303 and note 2, 304 and ib.- his faults as a minister, 353note 1. further remarks on his History of the Church of Scotland, its immense wealth, Rebellion, ib.

and note 2-his disregard iii. 299-wholly changed in character for truth, and pusillanimous flight, 354 since the restoration of the bishops, 322 -
banishment, 355 -justification of it, -in want of a regular liturgy, b. -
ib. and note 2-severe remark of, on English model not closely followed; the clergy, iii. 239. consequences of this, ib. Clarendon (Henry, earl of), succeeded by Church lands restored at the Restoration, Tyrconnel in the government of Ireii. 295. land, iii. 70. Church plate stolen in the Reformation Clark (baron of the exchequer), his speech under Edward VI., i. 105, note 1 on the royal power, i. 314. Church revenues, spoliation of, in Eng-Clement VII. (cardinal Julius), pope, his land, i. 225. artful conduct towards Henry VIII., i. Civil war under Charles I., commence-74

difficulties of deciding on the ment of, ii. 148-great danger of, in king’s divorce. 75-forced to give senthe reign of Charles II., 421. tence against him, ib.-probably could Clanricarde (marquis of), his unsullied not have recovered his authority in character, iii. 374, note 1. England, 76-last bulls of, in the reign Clare (earl of), joins the king,is ill received, of Henry VIII., 79 - advice to the king and returns to the parliament, ii. 157. on his divorce, 80, note 1. Clarence (Lionel, duke of), parliament Clement VIII. (pope), favors Arabella held by, at Kilkenny, for reform of Stuart’s title to the English crown, i. abuses, iii. 341. 285 his project of conquering EngClarendon (Edward Hyde, earl of), char-land, it., note 1. acter of his talents and works, ii. 81-Clergy, levy on their possessions under MSS. and interpolation of his history Henry VIII., i. 34, 35-immunity of

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398 INDEX. CLEROY. COMMONERS. the, from civil authority, 71-corn-Clifford, sir Thomas, one of the Cabal pelled to plead their privilege, ib. - ministry, ii. 356. to be branded for felony, ib. - benefit Clifford, Thomas, lord treasurer, obliged of, taken from robbers, &c., with ex-to retire, ii. 374. emptions, ib. their privileges tried Cloths, impositions on, without consent and defeated ib. -popular opposition of parliament, i.

312 and note 1. to the, 72 -attacked in the house of Club-men, people so called, who united commons, 77-convicted of praemu-to resist the marauders of both parties nire, ib. -petition the king for mercy, during the troubles, ii. 175, note 1. and acknowledge him supreme head of Coffee-houses, proclamation for shutting the church, ib.- cause of their dislike up, iii. 14 and note. of the king’s divorce, 79-unwilling to Coke (sir Edward), his statement of the quit the catholic church, 81 -jealousy number of catholic martyrs under Elizexcited by their wealth, ib. -
subdued abeth. i. 169. note1 - his defection from by separation from Rome, and the dis-the court, and summary of his char. solution of monasteries, 92-dramatic acter, 829-defence of laws, and treatsatires on the, 95 and note 1-their ment of, by James, 330 and note 1  answers to libels against them, 96-his report concerning arbitrary proctheir importance aided by the Latin lamations, ib. -his sentiments on beritual, 97-their celibacy abolished by nevolences, 336 objects to the pristatute, 102 -conciliated by this meas-vately conferring with judges, 337ure, ib. conforming, but averse to opposes the extended jurisdiction of the innovations of the Reformation, 103 the court of chancery, 340-his deand note 2-the superior, in England, fence of the twelve judges, 342-susless offensive than in Germany, 110 - pension, restoration, and subsequent expelled from their cures by queen life and character, 343-his MSS., &c., Mary for having married, 114 and note 1 seized, ii. 34-extract from his fourth -the same restored under Elizabeth, institute, iii. 50-his explanation of 120, note 2-protestant, emigration of, the law regarding the king’s prerogato Germany, 176 division of, on the tive, 65 -his timid judgment in the church service, ib. - marriage of, dis-law of treason, 155.

approved by Elizabeth, 178 -her in-Coleman (Edward), remarkable confes.

junctions concerning it, and illegiti-sion of, ii. 385-seizure of his letters, macy of their children, ib. and note 5, 401. 179, and note l-their irregular observ-Colepepper (Lord), dictatorial style of ance of church ceremonies. 182 -arch-his letters to Charles I., ii. 184. bishop Parker’s orders for their disci-Colepepper (Mr.), ordered into custody pline, 180-the puritan advised not to of the sergeantat-arms for presenting separate from the church of England, the Kentish petition, iii.

262 and 184-deficiency and ignorance of, in notes 1 2. the English church, 187 and notes 2, 3 College- ), gross iniquity practised -certificates ordered of, ib., note 3-on his trial, ii. 425 and note 3.

endeavors to supply their deficiency by Collier, Jeremy, vindicates the practice meetings called prophesyings, 200-of praying for the dead, i.

98, note 1 ex-officio oath given to the, 204-aid  advocates auricular confession, 99, raised on the, under Elizabeth, 244 and note 1. note 1-support the doctrine of abso-Commendam, royal power of granting, lute power in the king, 320 - to pro-disputed, i. 341. mote their own authority, ib. - dis-Commerce, its stagnation in the reign of liked, from their doctrine of non-re- William III., iii. 133. sistance, ii. 60-deprived for refusing Commission of public accounts, ii. 341. the Book of Sports, ib. -oath imposed Commission of divines revise the liturgy, on the, by the convocation, 115-iii. 170. episcopal, restored to their benefices at Commitments for breach of privilege, iii. the Restoration, 301 national outcry 257-261. against the catholics raised by the, 405

Committee of secrecy appointed after the -refuse the oath of allegiance to Wil-resignation of sir Robert Walpole, iii. liam and Mary, iii. 110 and note 2-256 and notes 1, 3. their jacobite principles, 170-remarks Commonalty, risings of the, highly danon the taxation of, 235, note -
pres-gerous, i. 60-in Cornwall, ib.-in byterian, of Scotland, three hundred consequence of Wolsey’s taxation, ib. and fifty ejected from their benefices, -simultaneous in several counties, 313-of Ireland, their state, 349. ib. Cleves and Juliers, disputed succession in Commoners of England, ancient extent the duchies of, i. 328 and note 2. of the, i. 21.

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INDEX, 399 COMMON COUNCIL. COMMONS. Common council, two acts of the, con-on the design of an union with Scotsidered as sufficient misdemeanors to land, 305. note 2-continual bickerings warrant a forfeiture of the charter of of, with the king, 307 - proceedings of, the city of London, ii. 427 concerning Spanish grievances, 309Common-law right of election, iii. 47. debate and remonstrance on imposition Commons of Ireland, their remonstrance of James I., 315, 317 - proceedings of the long parliament of England, iii. of, against Cowell’s Interpreter, 320369. grievances brought forward by, to be Commons, house of, rejects bills sent from redressed, 322-complaint of, against the lords, i. 57 - two witnesses required proclamations. 323-negotiation with by the, in treason, ib.-rejects a bill the king for giving up feudal tenures, for attainting Tuustal, bishop of Dur-324- dissolution of parliament, 326ham, ib. unwilling to coincide with customs again disputed in the, 334court measures, ib. -increased weight parliament dissolved without a bill passof, 58-persons belonging to the court ing, 335-proceedings against Mompes. elected as knights of shires, 59 - per-son, 350 - against lord Bacon, 352. 353, sons in office form a large part of the, and note 2 - against Floyd, 360-lords ib. -oath of supremacy imposed on disagree to titles assumed by the, 344 the, 121

desirous that queen Eliza-and note 3 - proceedings of, for reforbeth should marry, 131, note 1, 133-mation, 356-sudden adjournment of, address of, to her to settle the succes-by the king, and unanimous protesta sion, 136-puritan members address tion, ib. - meets and debates on a grant Elizabeth against the queen of Scots, for the German war, ib. - petition and 145 -against the papists, 151 - papists remonstrances against popery, 358excluded from, and chiefly puritanical, king’s letter on, to the speaker, ib. - 193, 194 - articles of the church exam-petition in reply, 359 - debate and pro ined by the, 195-dissatisfied with the testation in consequence of the king’s church, 212-articles, &c., for reform-answer, ib. - adjourned and dissolved, ing, prepared by the, 213 -its disposi-360

- subsidies voted by the, 363tion and duties, 247 character of, summary of its proceedings under under Elizabeth, 248-imperfection of James I., 364, 365-first one of Charles early parliamentary history, ib. -more I., 368 -penurious measures and discopious under Elizabeth. 249-dispute solution of, 369-ill temper of, continof, with the queen on the succession, ued in the second, ib. and note 3&c., 250-Mr. Yelverton’s defence of dissolution of, 373 and note 2-a new its privileges, 253

-vainly interferes in parliament summoned, 380 - proceedthe reformation of ecclesiastical abuses, ings of, on the petition of right, 381ib. -first complaint on abuses in her disputes the king’s right to tonnage government, ib. - proceedings concern-and poundage, 384-prorogued, 385ing queen Mary, 254-restricted as to assembled again and dissolved, 386bills on religious matters, 255-its priv-religious disputes commenced by, ib. -
ileges defended by Peter Wentworth, ib. proceedings on bill for observance of -examines him, &c. on his speech, Sunday, 391-remonstrates against 256-puritanical measures of reform Arminianism and popery, 395-view in, 257-members of the, imprisoned, of the third parliament of Charles I., ib.

- triumphant debate of, on monop-408,409, and note 2 - the king’s declarolies, 262 -subsidies solicited from the, ation after its dissolution, ii. 9 - memib. -general view of its members under bers of it committed and proceeded Elizabeth, 263-increased by her, ib. against, 13-parliament of 1640 sumand note 1 -influence of the crown in, moned, 90 -
character of the members, 264, note 1-bill against non-resident 90, note 3-confer upon grievances, 91 burgesses in, 265 -exemption of, from -opposition of, to ship-money, ib.arrest during session claimed by, 267 -
dissolution of, 93 - desire of the nation power of committal for contempt, &c. for a parliament, 94-the long parlia269, 271-right of expulsion and de-ment convoked, ib. (see Long Parliatermining its own elections, 272-priv- ment) -attempt to seize five members ileges of. concerning money bills, 274-of the, 126 and note1 - proceedings on debate on the election of Goodwin and the militia question, 127, note 2,134, and Fortescue, 297-proceedings of, on the note 1, 135, and notes 1, 2 estimate of arrest of sir Thomas Shirley, 299 - re-the dispute between Charles I. and the monstrances of, against grievances, 300 parliament, 137-149- faults of, in the -proceedings of, on purveyance, 301 contest, 137-resolve to disband part of -temper of the, concerning grants of the army, 199 - form schemes for getmoney, ib.- vindication of its priviting rid of Cromwell, ib. and notes 2, 3 leges to the king, 303 - proceedings of, -vote not to alter the fundamental

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400 INDEX. COMMONS. CONSTITUTION. government, 208 - restore eleven mem-equal representation, ib.- accession of bers to their seats, 209-large body qf its members not derived from popular new members admitted, 213

-favor-principle, 44 - address of, to James II., able to the army, ib. -
petition to, or-concerning unqualified officers, 64dered to be burnt by the hangman. its augmented authority, 117, 118214-resolution of, against any fur-its true motive for limiting the revther addresses to the king, ib. - lords enue, 121 -its jealousy of a standing agree to this vote, ib.-
observations army, 138-its conduct with regard to on the members who sat on the trial of the Irish forfeitures, 141-special cormCharles, 216-vote that all just power mittee to inquire into the miscarriages is in the people, and for the abolition of of the war in Ireland, 142 - power of monarchy, 224 - constitutional party the, to direct a prosecution by the atsecluded from the, 225-resolve that torney-general, for offences of a public the house of peers is useless, 226 - pro-nature, 269. tected by the army, 228 - members do Commonwealth, engagement to live faithnot much exceed one hundred, 231 - ful to the, taken with great reluctance, retain great part of the executive gov-ii. 227. ernment. ib. - charges of injustice Companies, chartered, established in evaagainst, ib. -vote for their own dis-sion of the statute of monopolies, ii. 18 solution, 233 and note 3 - give offence -revoked, ib. to the republicans, ib.- their faults Compositions for knighthood, ii. 17 and aggravated by Cromwell, 237-ques-notes 1, 2 - taken away, 101. tion the protector’s authority, ib.-

Comprehension, bill of, clause proposed agree with the lords, on the restoration, in the, for changing the oaths of suthat the government ought to be in premacy and allegiance, rejected, iii. king, lords, and commons, 287-pass 170. several bills of importance, ib.-pre-Compton (sir William), expense of provpare a bill for restoring ministers, 304 inz his will, i.

77, note 1. and note 2-object to the scheme of Confession, auricular, consideration of its indulgence, 331-establish two impor-benefits and mischiefs, i. 99. tant principles with regard to taxation, Confessions extorted by torture in Scot840-appoint a committee to inspect land, iii.

314. accounts and nominate commissioners, Confirmatio chartarum, statute of, i. 311 with full powers of inquiring into pub- - cited in the case of Hampden, ii. 26. lic accounts, 341-extraordinary pow-Conformity, proclamation for, by king ers of, ib. - important privilege of right James I., i. 294. of impeachment established, 355-ad- Conformity, bill to prevent occasional, dress of, to Charles II., about disband-rejected by the lords, iii. 239. ing the army, 361-not unfriendly to Connaught, divided into five counties, the court, 370-the court loses the con-iii.

354-province of, infamously defidence of, ib.- testify their sense of dared forfeited, 366-inquisition held public grievances, 377-strongly ad-in each county of, by Strafford, 369. verse to France and popery, 378 and note Con, nuncio from the court of Rome, ii. - connection of the popular party with 64, 75. France. 380 and note 3, 381, note 1 - Conscience, treatment and limits of, in many leaders of the opposition receive government, i. 229, note 1. money from France, 384-impeach lord Consecration of churches and burialDanby, 388-culpable violence of the, grounds, ii. 66 and note 1. 392-deny the right of the bishops to Conspiracy supposed to be concerted by vote, 393 -remarks on the jurisliction the Jesuits at St. Omers, ii. 401. of, ib.-expel WVithens.

420-take Conspiracy to levy war against the king’s Thompson, Can, and others, into custo-person, may be given in evidence as an dy, ib. - their impeachment of Fitzhar-overt act of treason, iii. 151-not recris, and their right to impeach discussed, oncilable to the interpretation of the 422-its dispute with, and resistance to, statute, ib. and note 1-first instance the lords, iii. 22-28 - its proceedings in of this interpretation, ib. - confirmed the case of Skinner and the East India in Harding’s case, 152 for an invaCompany, 28-30-its proceedings in sion from Spain, 243 and note 1. the case of Shirley and Fagg, 31 -its Conspirators, military, destitute of a violent dispute with the lords, 32, 33. leader, ii. 261. and notes -its exclusive right as to Constitution of England from Henry III. money bills, 33-its originating power to Mary I., i. chap. i 17-69 under of taxation, 36-its state from the ear-James I., chap. vi. 283-366-under liest records, 42 -its numbers from Charles I., chap. vii. 1625-29, 367-409Edward I. to Henry VIII., and un-chap. viii.

1629-40, ii. 9-96-chap. ix.

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nTDEX. 401 CONSTITUTION. COVENTRY. 1640-42, 96-149 - from the commence-Copley (Mr.), power of the parliament ment of the Civil War to the Res-ever, i. 271. toration, chap. x. 150-289 - from the Coronation oath, dispute on its meaning Restoration to the death of Charles II., and construction, ii. 137 and note 2. chaps. xi. xii. 290-442; iii. chap.

xiii. Corporate property, more open than pri9-53 - from the accession of James II. vate to alteration, i. 87. to the Revolution, chap. xiv. 54-Corporation act, ii. 314-severely affects 103 under William III., chap.

xv. the presbyterian party, 315. 104-192 - under Queen Anne, and Corporations, informations,rought George I. and II., chap. xvi. 193-291
against several, ii. 428 - forfeiture of -design of a party to change, ii.

214 their charters, 429-receive new ones, - nothing so destructive to, as the ex-ib. - freemen of, primary franchise atclusion of the electoral body from their tached to the, iii. 46 - their great prefranchises, 430-original, highly aris-ponderance in elections, 50 - their fortocratical, iii. 24 - improvements in feiture and regrant under restrictions, the, under William III., 146. 56-new modelling of the, 78-bill Constitution, forms of the English, es-for restoring particular clause in, 115.

tablished in Ireland, iii. 334. Coshery, custom of, in Ireland, iii. 332, Constitution law, important discussions 340. on the, in the case of lord Danby, ii. Cotton (sir Robert), his books, &c. seized, M)0. ii. 34.

Constructive treason, first case of, iii. 151 Council of State, under the commonand note 1-confirmed in Harding’s wealth, consisted principally of prescase, 152 and note 3 -its great latitude, byterians, ii. 278. ib., 162

-confirmed and rendered per-Counsellors (Oxford) of Charles I., solicit petual by 36 and 57 George III., 152, the king for titles, ii. 159-their mo154-Hardy’s case of, ib., note 1. tives, ib. Consubstantiation, Luther’s doctrine, so Court, inns of, examined, concerning called, i. 101.

religion, i. 148. Controversy, religious conduct of, by the Court of parliament, the title disputed, Jesuits, &c. ii. 77. i. 354, note 3.

Controversy between the episcopal and Court of supremacy, commission for, in presbyterian churches of Scotland, iii. 1583, i. 204, note 1. 300.

Court of Charles II., wicked and artful Conventicles, act against, ii.

832,333, and policy of, to secure itself from suspicion note 2-its severity, ib. of popery, ii. 426. Convention parliament, the proceedings Courts of law, the three, under the Planof, ii. 291 -balance of parties in, 295, tagenets, how constituted, i. 21-mode note 2-dissolved, 308

attack on its of pleading in, ib., note 1. legality, ib., note 4-convention of Courts, inferior, under the Plantagenets, 1688, proceedings of the, iii. 96, 97-county courts, hundred courts, manor question of the best and safest way to courts, their influence, i. 22, 23. preserve the religion and laws of the Courts of Star-chamber, origin and powkingdom, 97-conference between the ers of, i. 63 and notes 1,. See Starlords and commons, 98-house of chamber. lords give way to the commons, 100 -

Courts, ecclesiastical, their character and summary of its proceedings, 101-its abuses, i. 215 and note 1. impolicy in not extending the act of Covenant, solemn league and negotiations toleration to the catholics, 169.

concerning the, ii. 161 - particular acConvents, inferior, suppressed, i.

84-count of, ib. - want of precision in the vices of, greater than in large abbeys, language of, 162-imposed on all civil &c., ib., note 1I-evils of their indis-and military officers, ib. - number of criminate suppression, 87-excellence the clergy ejected by, among whom of several at the dissolution, 88. were the most learned and virtuous Convocation (houses of), to be advised men of that age, 163, 164-burnt by with in ecclesiastical matters, iii. 171. the common hangman, 309. Convocation of the province of Canter-Covenant of Scotland, national, its origin, bury, its history, iii. 234-commons iii. 308. refer to it the question of reforming Covenanters (Scotch), heavily fined, iii. the liturgy, 236 - its aims to assimilate 312. itself to the house of commons. 237-Coventry (Thomas), lord-keeper, his adfinally prorogued in 1717, 238. dress to the house of commons, i. 369, Cope (Mr.), his measures for ecclesiastical note 3. reform in the house of commons, i. 257 Coventry (sir William), his objection to -committed to the Tower, ib. the arbitrary advice of Clarendon, ii. VOL. III. 26

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402 INDEX. COVERDALE. COMWELL. 859 outrageous assault on, 369, 370, first victim of their opinion, ib. - and note 1. causes which led to his execution, 46 Coverdale (Miles), his translation of the - his visitation and suppression of the Bible, i. 94. monastic orders, 83-advises the disCowell (Dr. John), attributes absolute tribution of abbey lands, &c., to propower to the king in his Interpreter, mote the Reformation, 90-his plan 1607, i. 321 and note 1 - the book sup-for the revenues of the lesser monaspressed, ib. and note 2. teries, ib., note 1-procures the disCowper (William), lord, made chancellor, persion of the Scriptures, with liberty iii. 203. to read them. 94, note 1. Cox (Richard), bishop of Ely, defends Cromwell (Oliver), rising power of, ii. church ceremonies and habits, i. 178, 169-excluded from the commons, but 179 Elizabeth’s violence to, 226 and continues lieutenant-general, 178  note 1.

historical difficulties in the conduct of, Coyne and livery, or coshering and bo-201 - wavers as to the settlement of naght, barbarous practice of, iii. 340. the nation, 215-victory at Worcester, Cranfield (lord), his arguments to the its consequences to, 228-two remarkcommons on a grant for German war. able conversations of, with Whitelock i. 357, note 2. and others, 229, 230-his discourse Cranmer (Thomas), archbishop of Can-about taking the title of king, ib. - terbury, probably voted for the death policy of, 234 and note 1 - assumes the of Cromwell, i. 44, note 2 - his part in title of protector, 235 - observations the execution of Catherine Howard, 47, on his ascent to power, 236-calls a note 1 - letter on the marriage of Anne parliament, 237 - his authority quesBoleyn, 74, note 2

-made archbishop, tioned, ib. - dissolves the parliament, 78 active in Henry VIII.‘s divorce, ib. - project to assassinate, 240-di80 -induces Henry VIII. to sanction vides the kingdom into districts, 241the principles of Luther, 93-procures appoints military magistrates, ib. -
his Edward VI. to burn Joan Boucher, 96, high court of justice, 243-executions note 2 -marriage of, 102-compelled by, 244 and note 1 -summons a parliato separate from his wife, ib. - protests ment in 1656, 244-excludes above against the destruction of chantries, ninety members, 245
and note 1-as104, note 2-recommended the aboli-pires to the title of king, 245-scheme tion of the collegiate clergy, 105, note 1 fails through opposition of the army, -liberality of, to the princess Mary, 247-abolishes the civil power of the 106 and note 2 - censurable concerning major-generals, ib. -refuses the crown, Joan Boucher, &c., 106 one of the 248 and note 1-_the charter of the principal reformers of the English commonwealth under, changed to the church, 107-his character variously “Petition and Advice,” 248-particdepicted, 108-articles of the church ulars of that measure, 249 and note 1 drawn up by. ib., note 1-disingenuous- -his unlimited power, ib. - oath of ness of his character, 108-protest of, allegiance taken by members of parbefore his consecration, 109 and note 1 liament, 259 his house of lords de-his recantations and character, ib. scribed, 250-dissolves the parliament, and note 2-his moderation in the ib. -his great design an hereditary measures of reform, ib. - compliance succession, 251 -referred to a council of, with the royal supremacy, 110-of nine, ib. -his death and character, - some church ceremonies and habits and foreign policy, ib.-
management retained by, 112. of the army, 253 - paralleled with Cranmer’s Bible, 1539, peculiarities of, i. Buonaparte, 253, 254, and note 194, note 1. his conquest of Ireland, iii. 375. Cranmer (bishop), his sentiments on Cromwell (Richard), succeeds his father, episcopacy, i. 387, note 1. ii.

255 - inexperience of, ib. - no Craven (earl of), unjust sale of his proof of his appointment by his father, estates, ii. 231, note 1. 256 and note l -gains some friends, Crichton (-), his memoir for invading 256-steadily supported by Pierpoint England on behalf of the papists, i. and St. John, ib.- his conduct com161, note 2. mended by Thurloe, 258 and note 1 -

Crighton and Ogilvy, their case, iii. 311. summons a parliament, which takes Croke (sir George), his sentence for the oath of allegiance to him as pro. Hampden in the cause of ship-money, tector, ib. -proceedings of the parliaii. 29, note 1. ment under, 259 and notes - disapCromwell (earl of Essex), his question points the hopes of the royalists. 260 to the judges respecting condemna- -does not refuse to hear the agents tions for treason, i. 44-himself the of Charles II., 265 and note 2-hopes

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tIWN~DwE 403 BROWN. DOMESDAY. entertained of his relinquishing the note -
alarm excited at its magnitude, government, ib. 290. Crown (officers of the), under the Plan-De Burgh, or Burke, family of, in Iretagenets, violence used by, i. 20-land, fall off from their subjection to juries influenced by, ib. the crown, iii. 339. Crown of England, uncertain succession Declaration published by the army for of the, between the houses of Scotland the settlement of the nation, ii. 214and Suffolk, i.

131, 136, 283, 286. in favor of a compromise, 306 - in faCrown and parliament, termination of vor of liberty of conscience, 330 of the contest between the, iii. 193. indulgence, 371-opposed by parliaCrown, the, personal authority of, its ment, 372-of rights, iii. 103.

diminuticn, iii. 280-the reason of it, Denization, charters of, granted to par281 - of material constitutional im-ticular persons, iii. 337.

portance, 285. Dependence of Irish on English parliaCrown (the), its jealousy of the preroga-ment, iii. 385. tive, iii. 246. Derry, noble defence of, iii. 380. Crucifix, its lawfulness in the English Desiderata Curiosa Hibernica, extract churches discusspl. i. 177-Elizabeth’s from that work, concerning the prepartiality for the, 178 and notes. diction of the rebellion in 1641, iii. 363, Customs on woad and tobacco i. 237 and note 1. note 1-on cloths and wines, 243  Desmond (earl of), attends the Irish partreble, against the English law, 313, liament, iii. 347-his rebellion in 1583, note 1 arbitrary, imposed by James and forfeiture of his lands, 361 his I., 314 and note 1. lands parcelled out among English unCy Pree, proceeding of, in the court of dertakers, ib. chancery, i. 91, note 1. Difference between the lords and com. mons on the Habeas Corpus bill, iii. Damaree (Daniel), and George Purchase, 18. their trial for hightreason, iii. 156, Digby (John, lord), his speech concernnote 2 ing Strafford, ii. Ill letters taken Damport (Mr.), his cautious motion con-on the rout of, at Sherborne, 188, cerning the laws, i. 257. note 1. Danby (Thomas Osborne, earl of), his Digges (Sir Dudley), his committal to the administration ii. 376-his virtues as Tower, i. 371. a minister, 378 -
marriage of the prince Discontent of the royalists, ii. 297. of Orange and princess Mary owing to Discontent of the nation with the governhis influence, ib. and note 3 - con-ment of William III., iii. 109. cerned in the king’s receipt of money Discontent of the nation at the conduct from France, 380 and note 1 - cause of of Charles II., ii. 336. his fall and his impeachment, 388-Discussions between the two houses of argument urged in defence of, 389-parliament on the exclusion of the questions arising from his impeach-regicides and others, ii. 391, 394. ment. 390 -
intemperance of the pro-Dispensation, power of, preserved after ceedings against him, ib. -important the Reformation, i. 194-attempt to discussions in the case of, 391 and take away, ib. note 2 - committed to the Tower, ib. Dispensations granted by Charles I., ii. - pleads his pardon, 392 -
lords resist 85. his plea, ib. -confined in the Tower Dissensions between lords and commons three years, 398 -admitted to bail by of rare occurrence, iii. 23. judge Jeffries, ib. Divinity, study of, in the seventeenth Darien company, the business of the, iii. century, ii. 68 and note 1. 322. Divorce of Henry VIII. from queen Dauphin (son of Louis XIV.), effect of Catherine, historical account of its his death on the French succession, iii. rise, progress, and effects, i. 73-79. 212.

Divorces, canon law concerning, under David II., parliament at Scone under Edward VI., i. 112, note - Henry him, iii. 294. VIII.‘s two, creating an uncertainty Dead, prayers for the, in the first liturgy in the line of succession, parliament of Edward VI., i. 98 - omitted on its enabled the king to bequeath the kingrevisal, ib. dom by his will, 48. Deaths of the dauphin and dukes of Bur-Dodd’s Church History, important letgundy and Berry, iii. 212-effect of ters to be found in, relative to the their deaths on the French succession, Catholic intrigues on the succession, ib., 213. i. 284, note. Debt (public), its amount in1714, iii. 208, Domesday Book, burgesses of, were in

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404 INDE. DORT. ELIZABETH. habitants within the borough, ii. 47, Effect of the press, ii. 438 -restrictions 48. upon it in the reign of Henry VIII., Dort, synod of, king James’s conduct to iii. 10-before and after the Restorathe, i. 393, 394, note 1. tion, 11, 12. Douay College, intrigues of the priests Ejection of nonconformist clergy, ii. of, i. 144-account of the foundation, 324. ib., note 2. Election, rights of, iii. 42, 53-four difDowning (sir George.) proviso introduced ferent theories relating to the, 46by, into the subsidy bill, ii. 340. their relative merits considered, ib. Drury (-), execution of, i. 398, note 3. Elections, regulated by Elizabeth’s minDublin, citizens of, committed to prison isters, i. 264 and note 1-debate confor refusing to frequent the protestant cerning, 265-first penalty for bribery church, iii. 359. in, 266-right of determining, claimed Dugdale (sir William), garter king at by parliament, 273 interference of arms, his account of the earl of Hert-James I. in, 298. ford’s marriage, i. 289 and note 2. Elections, remarks on their management, Dunkirk, sale of, by Charles II., ii. 336 iii. 49, 50, and notes 1, 2.  particulars relating to the sale of, Elective franchise in ancient boroughs, 351, 352, and note 2. difficult to determine by what class Durham, county and city of, right of of persons it was possessed, iii. 43election granted to the, iii. 45. different opinions regarding the, 46. Dutch, mortgaged towns restored to the, Eliot (sir John), his committal to the. 336-fleet insults our coasts, ii. 350 Tower, i. 371 -committal and pro-armies mostly composed of catho-ceedings against, ii. 10. lies, iii. 173. Elizabeth (princess), treasonable to assert her legitimacy, i. 48. Ecclesiastical commission court, i. 204

Elizabeth (queen of England), populaand note 1. tion of the realm under, i. 23, note 1 Ecclesiastical courts, their character and -revision of church articles under, abuses, i. 215, note 1 restrained by 102 a dangerous prisoner to queen those of law, 322 their jurisdiction, Mary, 115, note 1-easily reestablishes hi. 52, note 1 -commission of 1686
protestantism, 116-laws of, respectissued by James II., iii. 68. ing catholics, chap. iii. 117-164 her Ecclesiastics of Ireland, their enormous popularity and protestant feelings, 117 monopoly, iii. 384. -
suspected of being engaged in Edgehill, battle of, ii. 151 its conse-Wyatt’s conspiracy, ib., note 1-anquences in favor of Charles, ib. nounces her accession to the pope, but Edward I., his letter to the justiciary of proceeds slowly in her religious reform, Ireland, granting permission to some 118 - her council and parliament gensepts to live under English law, iii. 337. erally protestant, 119 - her acts of Edward II. (king of England), legisla-supremacy and uniformity, 120 -oath ture established by statute of, i. 19 and of supremacy to, explained, 121, note 1 note l -
restraint of Roman catholic worship Edward III. (king of England), remarkin her first years, 122-embassy to, able clause relating to treason in the from Pius IV., 123 -her death prophact of, ii. 391. esied by the Romanists, 124 and note 1 Edward VI. (king of England), attached -statute preventing, ib. - conspiracy to the reformed religion, i. 96-abili-against, ib., note 2-letters of the emties of his letters and journal, ib., note 2 peror Ferdinand to, on behalf of the -harsh treatment of his sister Mary, English catholics, 127 and note 2_ her and reluctance to execute Joan answer against them, ib. - circumBoucher, ib. -alterations in the Eng-stances of her reign affected her conlish church under, 96 -the Reforma-duct towards them, 130-the crown tion in his minority conducted with settled on her by act 35th Henry VIII., violence and rapacity, 103, 104-denies ib. - uncertainty of her succession, 131 the princess Mary enjoying her own re- - her marriage desired by the nation, ligion, 106

positive progress of the ib. -suitors to her, the archduke Reformation under, 103 - his laws Charles, and Dudley earl of Leicester, concerning religion reenacted, 120 - ib. -her unwillingness to marry, and omission of a prayer in his liturgy, ib., coquetry, 132, 249-astrological premote 1-differences between the prot-diction on her marriage, 132, note 3estants commenced under, 175-his objects with her council to tolerate popdeath prevented the Genevan system ery, 133 and note 1, 148-imprcbabil from spreading in the English church, ity of her having issue, 133 and note 2 176. - pressed to decide on her successor,

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INDEX. 405 ELIZABETH. NGLAND. 134, 249 -proceedings of, against lady towards bishop Cox, 226 and note 1 - Grey, 135 offended by the queen of tyranny of, towards her bishops, ib. Scots bearing the arms, &c. of England, and note 4-her reported offer to the 137-intrigues, with the malecontents puritans, 227, note 2-Walsingham’s of France and Scotland to revenge her-letter in defence of her government, self on Mary, ib., note l-not unfavor-229 and note view of her civil govable to her succession, 138 courses ernment, chap. v. 230-282 -character open to, after Mary’s abdication, 139 - of her administration chiefly religious, Bull of excommunication and deposi-230- her advantages for acquiring extion published against her by pope tensive authority, ib.- her course of Pius V., 142-insurrections against, government illustrated, 234, note 3and dangerous state of England had unwarranted authority of some of her she died, 143 her want of foreign proclamations, 237  disposition to alliances, ib. -statutes for her secu-adopt martial law, 240-her illegal rity against the papists, 144, 145, and commission to sir Thomas Wilford, 242 note 1 -addressed by the puritans - did not assert arbitrary taxation, against the queen of Scots, 145 - re-243- her singular frugality, 244strains the parliament’s proceedings borrowed money by privy seals, but against her, 146, 254 -advised to pro-punctual in repayment, ib. -
instance vide for her security, 146 - inclined of her returning money illegally coland encouraged to proceed against the lected, 245, note 1 -
dispute of, with papists, ib. her declaration for uni-the parliament, on her marriage and formity of worship, 148-on doubtful succession, and the common prayer, terms with Spain, 150 -foreign policy 249-253 -instances of her interference of, justifiable, ib., note 2-her inten-and authority over her parliaments, tion to avoid capital penalties on ac-253-260

-resigned monopolies, 261count of religion, 151-papists exe-compelled to solicit subsidies of her cuted on her statutes, 152-acknowl- later parliaments, 262-added to the edged queen by Campian the jesuit, members of the house of commons, ib. - torture used in her reign, 154-263-her monarchy limited, 276 and persecutions of, procure her to be note 1-supposed power of her crown, published as a tyrant, 155-lord Bur-280-Philip II. attempts to dethrone leigh’s defences of, ib. -her persecu-her, 284, note-intended James I. for tions an argument against the reign of her successor, 285, note 2 - her popuHenry IV. of France, ib., note 1l-com- larity abated in her latter years, 292 mands the torture to be disused, 157-and note 1-probable causes of, ib. - an inquisition made after her enemies, probable reasons for her not imposing and some executed, 160 -her assassi-customs on foreign goods, 313 mutination contemplated, 161 and note 1lation ordered by the star-chamber disaffection of the papists to, caused by during her reigns, ii. 40 -
alienation of her unjust aggressions on their liberty part of Ireland in the reign of, iii. 348 of conscience, 161, note 2 -an associa- - reasons for establishing the protestion formed to defend her person, 162 tant religion in Ireland in the reign of, - her affectation concerning the death 350. of queen Mary, 164 -number of catho-Empson (sir Richard), and Edmund lie martyrs under, 169-character of Dudley, prostitute instruments of the her religious restraints, 173-her laws avarice of Henry VII., i.

30 put to respecting protestant nonconformists, death on a frivolous charge of highchap. iv. 175-229 -her policy to main-treason, 31, 32, and note 1. tain her ecclesiastical power, 175 - Efclosures, rebellion concerning, i. 103. protestants recalled by her accession, England, state of religion in, at tLe be177-difference of her tenets and cere-ginning of the 16th century, i. 70monies, ib. and note 2-disapproves preparations in, for a reformation cf of the clergy marrying, 178-coarse the church, ib. - means of its emancitreatment of archbishop Parker’s wife, pation from the papal power, 80 - for179, note 1 - probable cause of her re-eign politics of, under James I., 328. taining some ceremonies. 181-pre-England, view of, previous to the long vents the abolishing of licenses and parliament. ii. 84-93-divided into dispensations, 195-orders for sup-districts by Cromwell, 241-state of, pression of prophesyings, 200, 201-since the Revolution in 1688, compared supported the Scottish clergy, 212-with its condition under the Stuarts, omits to summon parliament for five iii. 118-its danger of becoming a years. ib. - anxious for the good gov-province to France, 133. ernment of church and state, but jeal-England, New, proclamation against emious of interference, 213-her violence grations to, ii. 62.

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406 INDEX. ENGLISH NATION. FLANDERS. English nation not unsuited to a repub-Exeter, bishopric of, despoiled in the lican form of government, ii. 262-Reformation, i. 105. unwillingness of the, to force the re-Ex officio oath, in the high commission luctance of their sovereign, 408-court, i. 205 attacked in the house English settlers in Ireland, their de-of commons, 213. generacy, iii. 338-settlements of, in Expulsion, right of, claimed by parliaMunster, Ulster, and other parts, 361 ment, i.

272. -injustice attending them, 363. Episcopacy, house of commons opposed Factions of Pym and Vane, ii. 159-cause to, i. 212-divine right of, maintained, of their aversion to pacific measures, 387, 388, and note i, ii. 68 and note 3-ib. -at Oxford, 166. moderation of, designed. 116 and note 1 Fairfax (sir Thomas), and Oliver Crom. - bill for abolishing, 160-revived in well, superiority of their abilities for Scotland, iii.

313-jurisdiction of the war, ii. 177. bishops unlimited, ib. Falkland (Henry Carey, lord), account of, Episcopal discipline revives with the mon-ii. 167. note 1. archy, ii. 304-clergy driven out inju-Family of Love, said to have been emriously by the populace from their liv-ployed by the papists, i. 130. note 1. ings, iii. 303 permitted to hold them Feckenham (John, abbot of Westminagain, ib. ster), imprisoned under Elizabeth, i. Episcopalians headed by Selden, ii. 194 126, note 2. and note 1 Felton (- ), executed for fixing the Erastianism, the church of England in pope’s bull on the bishop of London’s danger of, i. 122, note.

palace, i. 144. Erudition of a Christian Man, 1540, Fenwick (sir John), strong opposition to reformed doctrines contained in, by his attainder in parliament, iii. 130,131 authority of Henry VIII., i. 93-char- - his imprudent yet true disclosure, acter of, ib., note 1. 132. Escheats, frauds of, under Henry VII., Ferdinand (emperor of Germany), writes i. 30-act for amending, 31. to Elizabeth on behalf of the English Essex (county of), extent of royal forests catholics, i. 127 and note 1 -his libin, ii.

18. eral religious policy, ib., note 2. Essex (Robert Devereux, earl of), injudi-Ferrers (George), his illegal arrest, i. 268, cious conduct of, after the battle of note 1. Edgehill, ii. 151, note 2-raises the Festivals in the church of England, i. 388. siege of Gloucester, 159-suspected Feudal rights perverted under Henry of being reluctant to complete the VII., i. 30-system in Scotland. intriumph of the parliament, 176 and troduction of, iii. 292 - remarks on the note 2. probable cause of its decline, 299. Estates, the convention of, turned into a Filmer (sir Robert), remarks on his parliament, iii. 320-forfeited in Ire-scheme of government, ii. 439. land, allotted to those who would aid Finch (Heneage), chief-justice of the comin reducing the island to obedience, mon pleas, adviser of ship-money, ii. 22 875. -defends the king’s absolute power, Et caetera oath imposed on the clergy, ii. 29 parliamentary impeachment of, 115. 139. note 1. Europe, absolute sovereigns of, in the Fines, statute of, misunderstood, i. 28 sixteenth century, i. 281. and note 1. Exchequer, court of, trial in, on the Fire of London, ii. 369 -
advice to Charles king’s prerogative of imposing duties, on the, ib.-
papists suspected, ib.i. 311 and note 2-cause of ship-money odd circumstance connected with, ib. tried in the court of, ii. 24 and note 3
and note 2. -court of. an intermediate tribunal Fish, statutes and proclamations for the between the king’s bench and parlia-eating of, in Lent, i. 389, note 2. ient. iii. 26. Fisher (John, bishop of Rochester), his Excise on liquor, first imposition of, in defence of the clergy, i.

77-beheaded England, ii. 175 and note 3-granted for denying the ecclesiastical supremin lieu of military tenures, 298-pre- acy, 42.

rogative of the crown reduced by the, Fitzharris (Edward), his impeachment, 899 -amount of duty on beer, under ii. 422-constitutional question on, William III., iii. 116, note 4. discussed, ib., 423.

Exclusion of the duke of York proposed Fitzstephen, his conquests in Ireland, iii. and discussed, ii. 407-410 -of place-333. inen and pensioners from parliament, Flanders, books of the reformed religion iii.

188, 189, and note 3. printed in, i. 93.

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INDEX. 407 FLEETWOOD. GEuTMAY. Fleetwood (lieutenant-general Charles), Fuller (Mr.), imprisonment of, by the opposes Cromwell’s assuming the title star-chamber, i. 343. of king, ii. 248-the title of lord-general, with power over all commissions, Gardiner (Stephen, bishop of Winchesproposed to be conferred on, 257 his ter), prevails on Henry VIII.

to procharacter, 268 and note 1. hibit the English Bible, i. 94, note 1Fleming (Thomas), chief baron of the forms a list of words in it unfit for exchequer, his speech on the king’s translation, ib.-a supporter of the power. i. 314. popish party, 96-in disgrace at the Flesh, statutes, &c. against eating, in death of Henry VIII., ib.-character Lent, i. 389
and note i. and virtues of, 107, note 2-his perseFletcher (John, bishop of London), sus-cution palliated, ib. pended by Elizabeth, i. 226, note 4. Garnet (Henry). his probable guilt in the Floyd (Mr.), violent proceedings of the gunpowder plot, i. 396, note 3. parliament against, i.

353-355 and Garraway and Lee take money from the note 2 -the infamous case of, conduct court for softening votes, ii. 377 and of the commons in, iii.

267, 268. note 2. Forbes (sir David), fined by the star-Garrisons, ancient military, force kept chamber, ii. 41. in, ii. 131. Forest laws, enforcement and oppression Gauden (Dr. John), the supposed author of, under Charles I., ii. 17, 18, and note 3 of Icon Basilike, ii. 222. 223, and note 1. - extent of forests fixed by act of par-Gavelkind, tenure of Irish, explained, liament, 101. iii. 329 and note 2-determined to be Forfeiture of the charter of London, ii. void, 360. 428-observations on the proceedings Gentry, or landowners, under the Planon, ib. tagenets, without any exclusive privFortescue (sir John), question of his elec-ilege, i. 21-disordered state of, under tion, i. 297. Henry VI. and Edward IV., 24-of Fostering, Irish custom of, explained, iii. the north of England, their turbulent 338, note 2-severe penalty against, spirit, 66

repressed by Henry VIII. 341. and the court of star-chamber, ib. and Fox (Edward, bishop of Hereford), ex-note 1 - why inclined to the Reformacites Wolsey to reform the monas-tion, 81-of England, became great telies, i. 82. under the Tudors, deriving their esFox (right honorable C.

J.), his doubt tates from the suppressed monasteries, whether James II.

aimed at subvert-90. ing the protestant establishment ex-George I. (king of England), his accesamined, iii. 58 and notes, 59, 60, and sion to the crown, iii. 222-chooses a notes-anecdote of, and the duke of whig ministry, ib. -great disaffection Newcastle, concerning secret service in the kingdom, 224 and note I-causes money, 256, note. of his unpopularity, 233 -Habeas France, its government despotic when Corpus Act several times suspended in compared with that of England, i. 275 his reign, ib., note 2

incapable of -authors against the monarchy of, speaking English, trusted his ministers 277, note 1-public misery of, iii. 210. with the management of the kingdom, 211, and note 1. 281. Franchise, elective, taken away from the George I. and George II. (kings of Engcatholics of Ireland, iii. 383
and iote 2. land), their personal authority at the Francis I. (king of France), his mediation lowest point, iii. 284. between the pope and Henry VIII., George II., character of, iii. 283, note 1. i. 75. Geraldines, family of the, restored, iii. 847. Francis II. (king of France), display of Gerard (Mr.), executed for plotting to kill his pretensions to the crown of Eng-Cromwell, ii. 240. land, i. 137 and note 1. Germany, less prepared for a religious Frankfort, divisions of the protestants at, reformation than England, i. 70-books i. 176 and 177, note 1. of the reformed religion printed in, 93 Freeholder, privileges of the English, ii.  celibacy of priests rejected by the 83 - under the Saxons bound to defend protestants of, 102-troops of, sent to the nation, 131. quell commotions, 103 and note 2French government, moderation of the, mass not tolerated by the Lutheran at the treaty of Aix-la-Chapelle, iii. 285.

princes of, 105 and note 2-reformaFresh severities against dissenters, ii.

368. tion caused by the covetousness and Fulham, destruction of trees, &c.

at the pride of superior ecclesiastics, 109palace of, by bishop Aylmer, i.

206, war with, commons’ grant for, in note 2. 1621, 357.

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408 INDEX. GERTRTUTDENUIBRG. HALL. Gertruydenburg, conferences broken off Granville (lord), favorite minister of and renewed at, iii. 207-remark of George II., iii. 283-bickering between Cunningham on the, ib., note 1, him and the Pelhams, ib., 285. Glamorgan (Edward Somerset, earl of), Gregory XIII., his explanation of the discovery of a secret treaty between bull of Pius V., i. 153. him and the Irish catholics, ii. 187-Grenville (right honorable George), his certainty of, confirmed by Dr. Birch, excellent statute respecting contro188 and note 2. verted elections, iii.

52. Godfrey (sir Edmondbury), his very ex-Grey (lady Catherine), presumptive heirtraordinary death, ii. 402-not satis-ess to the English throne at the beginfactorily accounted for, ib. and note 2, ning of Elizabeth’s reign, i. 131, 249403, and notes 1, 2. proceedings of the queen against her, Godolphin (Sidney, earl of), preserves a 135 and note l-her party deprived of secret connection with the court of infiuence by their ignoble connections, James, iii. 214, note 3 his partiality 136

legitimacy of her marriage and to the Stuart cause suspected, 215. issue, 288, 289 - present representaGodstow nunnery interceded for at the tive of this claim, 291, note -1 her dissolution, i. 87. former marriage with the earl of PemGodwin (William), important circum-broke, ib. stances, omitted by other historians. Grey (Leonard, lord-deputy of Ireland), respecting the self-denying ordinance, defeats the Irish, iii. 347. pointed out by, in his history of the Grey (sir Arthur), his severity in the govcommonwealth, ii. 177, note 2-his ernment of Ireland, iii. 354. book characterized as a work in which Griffin (- ), star-chamber information great attention has been paid to the against, ii. 38, note 3. order of time, 191. note 2. Grimston (sir Harbottle), extract from Gold coin, Dutch merchants fined for ex-his speech, ii. 274, note 1-elected porting, i.

336. speaker, 285. Goodwin (sir Francis), question of his Grindal (Edmund, bishop of London), election. i. 298 and note 2. his letter concerning a private priest, Gossipred, iii. 338, note 2-severe penalty i. 122.

against, 341. Grindal (Edmund, archbishop of CanGovernment of England, ancient form of, terbury), prosecutes the puritans, i. a limited monarchy, i. 274-279, and 197 tolerates their meetings called 277, note 2-erroneously asserted to ” prophesyings,” 201-his consequent have been absolute, 277-collsulta- sequestration and independent charactions against the, of Charles II. begin ter, ib. and note 2. to be held ii. 430

difficult problem Gunpowder plot, probable conspirators in the practical science of, iii. 94-in the, i. 396, 397, and note a. always a monarchy limited by law, 102 -its predominating character aristo-Habeas Corpus, trial on the right of, 1. cratical, ib. - new and revolutionary, 376, 380, 382, ii. 10-act of, first sent remarks on a. 112-Locke and Mon-up to the lords, 337 - passed, iii. 19 - tesquieu, authority of their names on no new principle introduced by it, ib. - that subject, 242-studious to propower of the court of common pleas to mote distinguished men, ib. - execu-issue writs of, 20 and note 1 - particutive, not deprived of so much power lars of the, ib. -its effectual remedies, by the Revolution as is generally sup-21, 22. posed, 280-arbitrary, of Scotland, Hale (sir Matthew), and other judges, 810. decide on the illegality of fining juries, Government, Irish, its zeal for the ref-iii. 16, 17-his timid judgment in cases ormation of abuses, iii. 341 -of Ire-of treason, 155.

land, benevolent scheme in the, 380 Hales (John), his defence of lady Cathe and note 1. rine Grey, i. 135, 136, and note 1 - his Governors of districts in Scotland take character and Treatise on Schism, ii. the title of earls, iii. 292. 79, 80. Gowrie (earl of), and his brother, exe-Hales (sir Edward), case of, iii. 66, 67. cuted for conspiracy, iii. 311 and note 3. Halifax (George Saville, marquis of), Grafton (Thomas;, his Chronicle imper-gives offence to James II., iii. 55feet, i. 33, note 1.

declaration of rights, presented by, to Graham and Burton, solicitors to the the prince of Orange, 105, 106-retires treasury, committed to the Tower by from power, 113. the council, and afterwards put in cus-Hall (Arthur), proceedings of parliament tody of the sergeant by the commons.

against, i. 272 and note 1 - famous case iii. 268. of, the first precedent of the commons

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NDEX. 409 HAJL. HENaY Vm. punishing one of their own members, from England with the crown jewels, 273. 138 and note 1 - Charles I.‘s strange Hall (Edward), his Chronicle contains the promise not to make any peace without best account of the events of the reign her mediation, 154-impeachment of, of Henry VIII., i. 33, note l-his ac-for hightreason, the most odious act count of the levy of 1525, 34, note 1. of the long parliament, 155-her conHall (Dr. Joseph, bishop of Exeter), his duct, 179-and advice to Charles, 180 defence of episcopacy, ii, 68, note 3. -writes several imperious letters to Hamilton (James, duke of), engaged in the king, 184-forbids him to think the interest of the pretender, iii. 218-of escaping, ib., note 2 ill conduct of, killed in a duel with lord Mohun, ib. 185-abandons all regard to English Hampden (John), levy on, for ship-money, interest, ib. -plan formed by to deii. 24 and note 2 -trial of, for refusing liver Jersey up to France, ib.- anecpayment, 24andnote, 25-29and note 1 dote of the king’s letters to her, ib., 30-mentioned by lord Strafford, 55. note 3 - power given her by the king Hampton Court conference with the pu-to treat with the catholics, 186. ritans, i. 294.

Henry II. (king of England), institutes Hanover, settlement of the crown on the itinerant justices, i. 21, 22-invasion house of, iii.

176-limitations of the of Ireland by, iii. 333. prerogative contained in it. ib. and Henry VI., clerical laws improved under, note 1 - remarkable cause of the fourth i. 71. remedial article, 180. Henry VII. (king of England), state of Hanover, the house of, spoken of with the kingdom at his accession, i. 23contempt, iii. 220 and note 2-acquires parliament called by, not a servile the duchies of Bremen and Verden in one, 24 -
proceedings for securing the 1716. 233 and note 1. crown to his posterity, ib. - his marEianoverian succession in danger from riage, and vigilance in guarding the the ministry of queen Anne, iii. 220 crown, made his reign reputable but and note 1. not tranquil, ib. - statute of the 11th Harcourt (Simon, lord Chancellor), en-of, concerning the duty of allegiance, gaged in the interest of the pretender, ib. - Blackstone’s reasoning upon it iii. 218. erroneous, that of Hawkins correct, 25, Harding’s case, constructive treason in, note 2 -did not much increase the iii. 152 and notes 2, 3. power of the crown, ib. -laws enacted Hardwicke (lord chief-justice), his argu-by, overrated by lord Bacon, 26-his ments in opposing a bill to prevent mode of taxation, 28-subsidies being smuggling, iii. 279. unpopular, he has recourse to benevoHarley (sir Robert), puritan spoliations lence, 29-and to amercements and of, ii. 120
and note 1. forfeitures, 30 - made a profit of all Harley (Robert, earl of Oxford), his cen-offices, even bishoprics, ib. - wealth sure on the parliamentary proceedings amassed by him soon dissipated by his against Floyd, i. 35.5 note 2. son, 31-council court formed by, exHarmer, his valuation of monastic prop-isting at the fall of Wolsey, 66-not erty in England, i. 82, and 88, note 2, that of star-chamber, nor maintainable Harrington (sir John), notice of James I. by his act, 67, note 2-his fatal susby, i.‘93, note 1. picion, 68-enacts the branding of Hatton (sir Christopher), his lenity tow-clerks convicted of felony, 71 - probaards papists, i. 172 and note 1 -an en-ble policy of. in the marriage of Henry emy to the puritans, 203 -his spolia-VIII., 73 and note 1 - low point of his tion of church property, 225 -attempt authority over Ireland, iii. 343

-conto assassinate, 241-his forest amerce-fined to the four counties of the Engment, ii. 18. lish pale, ib. Heath (Robert), attorney-general, his Henry VIII., his foreign policy, i. 31speech on the case of habeas corpus, his profusion and love of magnificence, i. 378-on the petition of right, ib.- ib. -acts passed by, to conciliate the denies the criminal jurisdiction of par-discontents excited by his father, ib. - liament, ii.

11. extensive subsidies demanded of parHeath (Thomas), seized with sectarian liament by him, 32-exaction by mistracts, i. 130, nots 1. called benevolence, in 1525, 36-inHenrietta Maria (queen of Charles I.), stance of his ferocity of temper, 42, 43, conditions of her marriage with him, i.

45-reflections on his government and 402-latter o.’, concerning the religion character, 49, 50-did not conciliate of Charles I., i 74, note 1

her im-his people’s affections, 50-was open prudent,aL for $opety, 124, note 2 - and generous, but his foreign politics fear of irp-eh.Y’ent, 126, note1 - sent not sagacious, w., -memiory r-verei on

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410 INDEX. HENRY IV. HOOKER. account of the Reformation, ib. -was Herbert (chief-justice), his judgment in uniformly successful in his wars, ib.-
the case of sir Edward Hales, iii. 67as good a king as Francis I., ib., note 1 remarks on his decision, ib., 68-rea- suppresses the turbulence of the sons of his resignation, 108, note 1. northern nobility, &c., 66-star-chain-Herbert (Edward, lord, of Cherbury), her in full power under, 67 and 68, fictitious speeches in his History of note 2 - his intention of beheading Henry VIII., i. 32. note 2. certain members of parliament, 68-Heresy, canon lasvs against, framed under fierce and lavish effects of his wayward Edwa’rd VT., i. 111, note 1. humor, ib.

-religious contests the IIertford (Edward Seymour, earl of), his chief support of his authority, 69 - privalte marriage with lady Grey, i. 135

Lollards burnt under, 70-col-trover- - imprisonment and subsequent story sial answer to Luther, 72-ability of, of, ib. and 136, note  inquiry into for religious dispute, ib., note 2-ap- the legitimacy of his issue, 288, 289, parent attachment of, to the Romish and note 1 - Dugdale’s account of it, church, 73-his marriage, and aver-290, note a. sion to Catherine of Aragon, ib.- Hexham Abbey interceded for at the time of his marriage with Anne Boleyn, dissolution, i. 87. 74 and note 2-sends an envoy with Ileyle, sergea,!t. his speech on the royal his submission to Rome, 75-throws prerogative. i. 262, note. off its authority on receiving the papal Heylin (Dr. Peter), his notice of the Sabsentence, ib. his previous measures batarian bill, i. 391, note 3-his conpreparatory to doing so, 76 - takes duct towards Prynne, ii. 43. away the first-fruits from Rosme. 78-Heywood (Mr. sergeant), his Vindication becomes supreme head of the English of Mr.

Fox’s History, iii. 58, note 1. church, 79 and note 1-delays his High commission, court of, 1583, its pow separation from queen Catherine, from erful nature, i. 204 and note 1 act the temper of the nation, 80-expedi-for abolishing the. ii. 99 and note 3. ent concerning his divorce, ib., note - High and low churchmen, their origin proceeds in the Reformation from policy and description, iii. 170, note 5, 234. and disposition, 81 -
the history of hlis istriomastix, volume of invectives so time written with partiality, ib., note 2 called, ii. 43. -not enriched by the revenues of Hoadley (Benjamin, bishop of Bangor), suppressed monasteries, 86-his alien-attacked by the convocation, iii. 237ation of their lands beneficial to Eng-his principles, 238. land, ib.-should have diverted rather Hobby (sir Philip), recommends the than have confiscated their revenues, bishops’ revenues being decreased, i. 88-doubtful state of his religious 105. note 1. doctrines, and his inconsistent cruelty Hobby (sir Edward), his bill concerning in consequence, 92 - sanctions the the exchequer, i. 258. principles of Luther, 93-bad policy Holland (Henry Rich, earl of), chiefof his persecutions. 94-prohibits the justice in eyre, ii. 18-joins the king reading of Tindal’s Bible, ib., note 1 - at Oxford, 157-is badly received, ib. state of religion at his death, 96 
his -returns to the parliament, ib. law on the celibacy of priests, 102-Holland, war with, great expense of the, his reformed church most agreeable to ii. 358 - Charles II. receives large the English, 114, note 2

- his provi-sums from France during the, 366sions for the succession to the crown, infamy of the, 370. 131-supports the commons in their Holles (Denzil), committal and proceedexemption from arrest, 268-his will ings against, ii. 10, 11. disposing of the succession, 287-IIollingshed (Raphael), his savage acdoubt concerning the signature of it, count of the persecution of the paib. -account of his death, and of that pists, i. 153, note 1-his description of instrument, ib., note 1-disregarded the miserable state of Ireland, iii. 354. on the accession of James. 291 in-Hollis (lord), sincerely patriotic in his stitution of the council of the north clandestine intercourse with France, by, ii. 48. ii. 383 and note 2.

Henry IV. (king of France), opposes the Holt (chief-justice), his opinion concermclaim of Arabella Stuart on the Eng-ing the power of the commons to comlish crown, i. 285, note. mit, iii. 272. lenry (prince of Wales, son of James 1.), Homilies, duty of non-resistance mainhis death, suspicion concerning it. i. tained in the, i. 405, note 1. 346 and notee 1, 2, 347 
esign of lIooker (Richard), excellence of his Ecmarrying him to the infanta, 849 and clsiastical Polity, i. 217 - character note i. and force of Lis Argument, 218 - rela

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INDEX. 411 HOOKEB. IRELAND. tive perfection of the various books, Images, destruction of, under Edward 219 imperfections of, ib. -justness VI., i.

97 and note 2. and liberality of, in his views of gov-Impeachment, parliamentary character ernment, 221-interpolations in the and instances of, i. 350, 351, 364posthumous books considered. 222 and question on the king’s right of pardon note I -his view of the national con-in cases of, ii. 393 - decided by the act stitution and monarchy, 222, 223-of settlement against the king’s right, dangerous view of the connection of 394-abatement of, by dissolution of church and state, 223-228. parliament, 395 - decided in the case Hooker, member for Athenry, extract of Hastings, 399 - of commons for from his speech in the Irish parlia-treason, constitutional, 422, 423. ment, iii. 355. Impositions on merchandise without conHopes of the presbyterians from Charles sent of parliament, i.

312, 313, and II., ii. 302. note 1-argument on, 314-316-again Houses built of timber forbidden to be disputed in the house of commons, erected in London after the great fire, 334. iii. 14. Impressment, statute restraining, ii. 102. Howard (Catherine), her execution not an Imprisonment, illegal, banished from the act of tyranny, her licentious habits English constitution, i. 235-flagrant probably continued after marriage, i. instances of, under Elizabeth, ib. - 47 and notes.

remonstrances of the judges against, Howard (sir Robert), and sir R.

Temple, 236. become placemen, ii. 377. Incident (transaction in Scotland so Howard (lord, of Escrick), his perfidy called), alarm excited by the, ii. 124. caused the deaths of Russell and Essex, Independence of judges, iii. 189 this ii. 431, 432. important provision owing to the act Howell (James), letters concerning the of settlement, ib. elevation of bishop Juxon, ii. 46, note 1. Independent party (the), their first great Hugonots of France, their number, i. victory the self-denying ordinance, ii. 180, note 2. 177 — new-model the army, 178-two Huic, ( - ), physician to queen Eliza-essential characters of, 193 and note 2 beth, accused of dissuading her from - first bring forward principles of tolmarrying, i.

133, note 2. eration, 197 Hume (David), his estimate of the value Independents, liability of the, to severe of suppressed monasteries, i.

88, note 2 laws, i. 215-origin of the name, 216 -perversion in his extracts of parlia- - emigrate to Holland, ib. -and to mentary speeches.

262, note -his er-America, ii. 62. roneous assertion on the government Influence of the crown in both houses of England, 277, note 2-his partial of parliament, remarks on the, iii. 256. view of the English constitution under Innes, father, the biographer of James Elizabeth, 282, note -his account of II., extract from, iii. 78. Glamorgan’s commission, ii. 189.

Innocent VIII. (pope), his bull for the Hun (Richard), effects of his death in reformation of monasteries, i. 84, note 2. the Lollards’ tower, i. 72. Institution of a Christian MIan, 1537, Huntingdon (George Hastings, earl of), reformed doctrines contained in, by his title to the English crown, i. 284. authority of Henry VIII., i. 13-charHutchinson (Mrs.), her beautiful exacter of, ib., note 1. pression of her husband’s feelings at Insurgents in the rebellion of 1641, their the death of the regicides, ii.

311. success, iii. 374 - claim the reestablishHutchlnson (colonel), died in confinement of the catholic religion, ib. ment, ii. 350.

Insurrections on account of forced loans, Huttou (Mr. justice), his statement con-i. 35 - on the king’s supremacy, 42, 48 cerning a benevolence collected for -concerning enclosures, 103-of sir Eliza! eth, i. 245, note 1. Thomas Wyatt, &c., 117, note 1. Hyde (sir Nicholas, chief-justice), his Intercommuning, letters of, published in speech on the trial of habeas corpus, i. Scotland. iii. 314. 378. Intrigues of Charles II. with France, ii. Hyde and Keeling (chief-justices), exer-358. cise a pretended power with regard to Ireland, mismanagement of the affairs of, juries, iii. 15 and note 1. iii. 113 and note -ancient state of, Hyde, lord chancellor, extract from his 327-necessity of understanding the speech at the prorogation of the con-state of society at the time of Henry vention parliament, ii. 308, note 3. the Second’s invasion, ib.- its division, 328-king of, how chosen, ib. -its Icon Basilik6, account of, ii. 222. chieftains, ib.-rude state of society

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412 INDEX. IRISH AGENTS. JAMES I. there, 330-state of the clergy in, 331

Jacobite faction, origin of the, iii. 110-ancient government of, nearly aristo-party rendered more formidable by cratical, 332-its reduction by Henry the faults of government. 245-their II., 333-its greatest part divided strength, 248-strength of, in Scotamong ten English families, 334

- the land, in the reigns of George I. and II., natives of, expelled, ib.-

English laws 325, 326. established in, ib. -natives of. claim Jacobites, intrigues of the, iii. 213protection from the throne, 336 its their disaffected clergy send forth lidisorderly state, 338 -miseries of the bels, 214-decline of the, 244. natives, 340-its hostility to the gov-Jacobitism of the ministers of queen ernment, 342-its northern provinces, Anne, iii. 219, note l-of Swift, 220, and part of the southern, lost to the note 2-its general decline, 325. crown of England, ib.-its conduct James I. (king of England), view of the during the contest between the houses English constitution under, i. chap. vi., of York and Lancaster, 344-royal 283-366 - his quiet accession, notwithauthority over it revives under Henry standing the numerous titles to the VIII., 346-raised to the dignity of a crown, 283-his and the other claims kingdom, 347-elections declared il-considered. 284-292, and notes - Elizalegal in, 355-rising of the people to beth’s intrigues against, 285 and note 2 restore the catholic worship, 359- -four proofs against his title, 287priests ordered to quit. ib. -English his affection for hereditary right, 291laws established throughout, 360-posture of England at his accession, 292
scheme for perfecting its conquest, 361 -his early unpopularity, 293-hasty -Edmund Spenser his account of the temper and disregard of law, ib., note 1 state of Ireland, 362-constitution of - his contempt for Elizabeth, ib., note 2 its parliament, 365 - its voluntary con- - the Millenary petition presented to, tribution for certain graces, 366-free ib. and note 3 -his conduct to the puritrade to be admitted, ib. - rebellion of tans at the Hampton Court conference, 1640, 370-its misgovernment at all 294 and notes 1, 2, 3-proclamation for times, 372 its fresh partition, 375-conformity, 295-employed in pubdeclaration for its settlement by Charles lishing his maxims on the power of II., ib. - different parties in, their va-princes, 296 - his first parliament sumrious claims, 376-declaration not sat-moned by irregular proclamation, ib. isfactory, ib. -
complaints of the Irish, -dispute with, on the election of Forib. -natural bias of Charles II. to the tescue and Goodwin, 297-artifice of, religion of, ib. unpopularity of the towards the commons on a subsidy, duke of Ormond with the Irish cath-302 discontent of, at their proceedolics, 378-lord Berkeley’s adminlstra-ings, ib., 326, note 1-his scheme of an tion in 1670, ib. -the civil offices of, union with Scotland, 305, note 2, 306, filled with catholics in the reign of note 1 - his change of title, 307, note 2 James II., 379-civil war of, in 1689, - continual bickerings with his parliaib. -treaty of Limerick, 380-oath of ments, 308-his impolitic partiality supremacy imposed on the parliament for Spain, 309
and notes 1, 2, 349, 362 of, 382 three nations and their re-and note 1, 363 and note 1, 399-duties ligions in, 384-its dependence on the imposed by, 311 and note 2 -defects of English parliament, 386 -rising spirit his character, 326 and notes 2, 3-forof independence in, 387-jealousy and eign politics of England under, 327discontent of the natives of, against the his treatment of lord Coke, 330, note 1 English government, 388-result of -his use of proclamations, 331, note 1 the census of 1837, as showing the -his endeavors to raise money by relativenumbers belonging to the dif-loans, titles, &c., 332, 333, and note 1 ferent religious bodies, 384, note 2. -dissolves the parliament, 335 and Irish agents for the settlement of Ireland note 6 -his letter and conduct to the disgust Charles II., iii. 377. twelve judges, 341, 342-his unpopuIrish catholics, penal laws against, iii. 381. larity increased by the circumstances Irish forfeitures resumed, iii. 140. of Arabella Stuart, Overbury, and RaIrish lords surrender their estates to the leigh, 345-348 - his probable knowlcrown, iii. 360. edge of the murder of Overbury, 346 Irish natives, origin of the, iii. 328-and note 2-calls a new parliament, their character. 330-their ancient 349-his sudden adjournment of it, condition, 331-claim the protection 356-his letter to the speaker of the of the throne, 336-not equitably commons on petitions against popery, treated in the settlement of the colo-358- reply of, to a second petition, ib. nies, ib. - disaffected, their connection - adjournment, dissolution, and prowith Spain, 371. ceedings against members of both

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INDEX. 413 JAMES I. JUDGES. houses, 360, 861, and note 8 libels -his aversion to the Scottish presbyagainst, 862 and note 1-his declara-tery, 307 forces on the people of tion of sports, 390 opposes the Ar-Scotland the five articles of Perth, ib. minian heresy, 393, note 6, 394 and James VII. (king of Scotland), his reign, note - suspected of inclination to the iii. 316-his cruelties, ib. -attempts papists, 395 and note l-answers car-to introduce popery, ib. - national redinal Bellarmine, 398 -state of papists jection of him from that kingdom, 317. under, 395-405, and notes -his reign Jefferies (judge), violence of, iii. 68. the most important in the constitu-Jenkes, committed by the king in countional history of Ireland, iii. 358, 359. cil for a mutinous speech, iii. 18. James II.

(king of England), attributes Jenkins (judge), confined in the Tower his return to popery to the works of by the long parliament, iii. 270. Hooker, i. 220, note 1-his schemes of. Jenner (a baron of the exchequer), conarbitrary power, iii. 55-issues a proc-mitted to the Tower by the council, lamation for the payment of customs, and afterwards to the custody of the ib. and note 2 _his prejudice in favor sergeant by the commons, iii. 268. of the catholic religion, 57 - his inten-Jermyn (Henry, lord), dictatorial style astion to repeal the habeas corpus and sumed by him in his letters to Charles I., test acts, ib.- his remarkable conver-ii. 184. sation with Barillon, 56 and 57, note 3 Jesuits, their zeal for the catholic faith, - deceived in the disposition of his sub-i.

170 -missionaries of, in England, ii. jects, 61-supported by his brother’s 64 and note 1. party, 62 and note 2-prorogues the Jewell (John, bishop of Salisbury), opparliament, 64-his scheme for sub-poses church ceremonies and habits, i. verting the established religion, 69-177. note 2, 178, 179, note 3. his success against Monmouth inspires Jews permitted to settle in England, ii. him with false confidence, 72, 73-re- 302. jects the plan for excluding the princess Johnson (Dr. Samuel), error of, with of Orange, 73-dissolves the parlia-respect to lord Shaftesbury, iii. 162, ment, 77, 78-attempts to violate the note i. right of electors, 78 -
solicits votes for Joseph (emperor of Germany), his death, repealing the test and penal laws, 79-iii. 209. expels the fellows from Magdalen col-Joyce, seizure of Charles by, ii. 200. lege, 79-his infatuation, 81-his im-Judges in the reign of Henry VIII., policy, 82 -received 500,000
livres from their opinion that attainders in parliaLouis XIV., ib. - his coldness to Louis ment could not be reversed in a court XIV., ib. - his uncertain policy dis-of law, i. 44-of the court of starcussed, 83-his character, ib. and chamber, 66 and note 2 - of Elizabeth, note 1, 84-reflections on his govern-remonstrate against illegal imprisonment, 86

- compared with his father, ib. ments, 235 - privately conferred with, -has anumerous army, 88-influenced to secure their determination for the by his confessor Petre, 90-considered crown, 338 and note 1 - the twelve disan enemy to the prince of Orange and regard the king’s letters for delay of the English nation, ib. -his sudden judgment, 341, 342-their answers on flight. 91-his return to London and the petition of right, 382-instances of subsequent flight, 92 and note 2-vote their independence in their duty, ii. 12 against him in the convention, 96- - their sentiments on ship-money. 23 compassion excited for him by his fall, -
sentence in Hampden’s case, 29 109-large proportion of the tories en-

-account Strafford guilty, 107, 103 gaged to support him, 123-various and note 1 - their conduct on the trial schemes for his restoration, and conof Vane, 311, 312 - in the reign of spiracy in his favor, 127 issues a Charles II. and James II., their brutal declaration from St. Germain’s, 127, manners and gross injustice, 403 and 128, and notes 2, 3-charged by Burnet note 3 - Scroggs, North, and Jones, with privity to the scheme of Grandval, their conduct, 404 and note 2  devise 129, note-his commission to Crosby various means of subjecting juries to to seize the prince of Orange, 130-their own direction, iii. 15-theis civil offices, courts of justice, and the general behavior infamous under the privy council in Ireland, filled with Stuarts, 189-independence of the, ib. catholics in the reign of, 379. -this important constitutional proviJames II. (king of Scotland), statute of, sion owing to the act of settlement, 190 to prevent the alienation of the royal - Pemberton and Jones, two late domains, iii.

297. judges, summoned by the commons in James VI. (king of Scotland), his success the case of Topham, 271 - Powis, in restraining the presbyterians, iii. 304 Gould, and Powell their opinions con

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414 INDEX. JUIES. LAUD. cerning the power of the commons to to raise money, i. 333, note 1; ii. 17 commit, 272. and note 1-compulsory, abolished, Juries governed by the crown under Eliz-101. abeth, i. 234 -
fined for verdicts, i. 62; Knollys (sir Francis). friendly to the puriiii.

15-question of the right of, to re-tans, i. 145 note’l, 203-opposed to turn a general verdict, 16. episcopacy, 211, note 5, 214. Jury, trial by, its ancient establishment, Knox (John), persecuting spirit of. against i.

21, note 1. the papists, i. 147, note 2-supports Jury, grand, their celebrated ignoramus the dissenting innovations at Frankon the indictment against Shaftesbury. fort. 176-his book against female monii. 425 and note 1. archy, 278 - founder of the Scots refJustice, open administration of, the best ormation, particulars of his scheme of security of civil liberty in England, i. church polity, iii. 304. 232 courts of, sometimes corrupted and perverted, 234. 235. Lacy, his conquests in Ireland, iii.

333. Justices of the peace under the Plantag-Lambert (general), refuses the oath of enets, their jurisdiction, i. 23-limi- allegiance to Cromwell. ii. 249, note 2tation of their power, 31. ambitious views of, 257-a principal Juxon (Dr. William, bishop of London), actor in expelling the commons, 262made lord-treasurer, ii. 46 and note. cashiered by parliament, ib. - his charwell treated in the parliament, 183, acter, 268

- panic occasioned by his note 1. escape from the Tower, 283-sent to Guernsey, 313 - suspected to have been Keeling (chief-justice), strong resolutions privately a catholic, 327. of the commons against, for fining ju-Landed proprietors, their indignation at ries, iii. 15, 16. the rise of new men, iii. 208. Kentish petition of 1701, iii. 262. Landowners of England, became great Kerns and gallowglasses, names of mer-under the Tudors, many of their estates cenary troops in Ireland, iii. 332. acquired from the suppressed monasKildare (earls of), their great influence teries, i. 90. in Ireland, iii. 346- (earl of), his son Landtax, its origin, iii.

134 its inetakes up arms, ib. - sent prisoner to quality, ib. London and committed to the Tower, Lands, ancient English laws concerning ib.

-executed with five of his uncles, their alienation. i. 27 crown and 347.

church, restoration of, ii. 295 - in IreKilligrew and Delaval, parliamentary in-land, act for their restitution, iii. 375quiry into their conduct, iii. 143. its insufficiency, 376-three thousand King, ancient limitations of his authority claimants unjustly cut off from any in England, i. 18-his prerogative of hope of restitution, 377. restraining foreign trade, 315 and note 4 Latimer (Hugh, bishop of Worcester), -ecclesiastical canons on the abso-intercedes for Malvern priory at the lute power of the. 317 -his authority dissolution, i. 87-zealous speech of, styled absolute, 320-command of the, against the temporizing clergy, 103, cannot sanction an illegal act, 377-note 1 his power of committing, 375, 378, Latin ritual, antiquity and excellence of 379 and note 1, ii.

10-power of the, the, i. 97. over the mititia considered, 133, 134, Latitudinarian divines, men most conand note 1. spicuous in their writings in the reign Kings of England, vote of the commons of King Charles II., iii. 61, 62. against the ecclesiastical prerogative of, Laud (William, archbishop of Canterii. 372-their difficulties in the con-bury), his assertion concerning bishops, duct of government, iii. 283, 284-i. 387, note; ii. 52, note 1 -high religtheir comparative power in politics, ib.

ions influence of, i. 394, note 2 -his tal-of Scotland always claim supreme ents and character, ii. 44, and note 3,45, judicial power. 298.

and note 1 - his correspondence with King’s Bench (court of), its order prohib-lord Strafford, 50, &c., 64, note 2, 87, iting the publishing a pamphlet, iii. 13 and note 2 -accused of prosecuting -formed an article of impeachment Prynne, &c., 54 -his conduct in the against Scroggs, ib.

church prosecution of the puritans, 59, Knight (- ), proceedings against, by 60, and note 1-procures a proclamathe University of Oxford. i. 406 and tion to restrain emigrants, 62 and note 2 note 1. -cardinal’s hat offered to, 63, note 3 Knight’s service, tenure of, ii. 128-130, -charges of popery against, 66, and and note 1 - statutes amending, 129. note 1, 67-union with the catholics Knighthood, conferred by James I., &c., intended by, 70-turns against them,

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INDEX. 415 LAUDERDALE. LUTBOY. 76, and note 2-impeached for high-Mary queen of Scots), his answer contreason, 164-confined in the Tower,.

cerning Elizabeth, i. 153, note 2. and in great indigence, ib. - particu-Leslie, remarks on his writings, iii. 173, lars of the charges against him, ib.- note i-author of the Rehearsal, a defends himself with courage and abil-periodical paper in favor of the jacoity, ib. -judges determine the charges bites, 214. contain no legal treason, ib. - cor-L’Estrange (sir Roger), business of licensmons change their impeachment into ing books intrusted to him, iii. 12. an ordinance for his execution, 165 -

Lcthington (Maitland of), his arguments peers comply, ib. — number of peers on the title of Mary Stuart to the Engpresent, ib. lish crown, i.

138 and note I-his acLauderdale (duke of), one of the cabal, count of the death and will of Henry ii. 356 - obliged to confine himself to VIII., 287
and note 1. Scotch affairs, 375 act of the, respect-Levellers, and various sects, clamorous ing the order of king and council to for the king’s death, ii. 216-favorably have the force of law in Scotland, iii.

spoken of by Mrs. Hutchinson, 232, 312-his tyranny, 313. note 1. Law, the ecclesiastical reformed, i. 110 Levies of 1524-5, letters on the difficulty and note 2, 111, and note 1, 112, 113-of raising, i. 33, note 1. less a security for the civil liberty of Libel, law of, indefinite, iii. 164 falseEngland than the open administration hood not essential to the law of, 165 of justice, 232-its ordinances for reg-and note 1, 166-Powell’s definition of ulating the press, 239. a libel in the case of the seven bishops, Laws, severity of, against theft, i. 23-ib. note -settled by Mr. Fox’s libel bill of England, no alteration of ever at-in 1792,167. tempted without the consent of parlia-Libels published by the puritans, i. 207, ment, 276 not enacted by kings of 208, and notes 1, 3, 209 and note 1England without the advice of their against James I., 362
and note 1. great council, ib. - penal, extension of Liberty of the subject, comparative view the, iii. 277 and note 1-their gradual of the, in England and France in the progress and severity, 278 have ex-reign of Henry VIII., i. 36-civil, its cited little attention as they passed securities in England, 231-of conthrough the houses of parliament, 279
science, declaration for, iii. 75 -its -several passed in England to bind motive, ib. - observations on its effects, Ireland, 386. 76 - similar to that published in ScotLawyers, their jealous dislike of the eccle-land, ib. - of the press, 163 - particusiastical courts, i. 214 - Whitgift’s cen-lars relating to the, 164. sure of, ib., note 4 - dislike of the com-Licenses granted for eating flesh in Lent, mon lawyers by archbishop Laud and i. 390, note. the earl of Strafford. ii. 51. Licensing acts, iii.

11-act, particulars Layer ( ), accuses several peers of relating to the, 163. conspiring in Atterbury’s plot, iii. 243, Lichfield (bishopric of), despoiled in the note 1. Reformation, i. 105. Leeds (Henry Osborn, duke of), in the Limerick, treaty of, iii. 380-its articles, Stuart interest.

iii. 219, note. ib. Leicester (Robert Dudley, earl of), a Lincoln (Theophilus Clinton, earl of), suitor for the hand of Elizabeth, i. 131
refuses to take the covenant, and is ex Cecil’s arguments against him, 132, eluded from the house of peers, ii. 162, note 2-assumes an interest in the note 2. queen, 132-connection with broken Lingard (Dr. John), artifice of, in regard off, 133-combines with the catholic to the history of Anne Boleyn, i. 45, peers against Cecil, 136, note 2. note 1-his insinuation with regard to Leicester (Robert Sidney, earl of), arch-Catherine Howard and Lady Rochford, bishop Laud’s dislike to, ii. 69, note 1. 47, note 2-his notice of the bill on Leighton (Alexander), prosecution of by the papal supremacy, 79, note 1-his the court of star-chamber, ii.

43. estimate of the value of suppressed Leinster, rebellion of two septs in, leads to monasteries, 88 note 2 - his observaa reduction of their districts, now called tions on the canon laws, and on CranKing’s and Queen’s counties, iii. 348. mer, 111, note l_ his extenuations of Lent, proclamations of Elizabeth for ob-queen Mary’s conduct, 115, note 1
serving of, i. 238 and note 4-statutes Litany, translated in 1542, i. 97, note 1. and proclamations for the observance Littleton (lord keeper), carries away the of, 389, note - licenses for eating flesh great seal, ii.

160. in, ib. Liturgy, chiefly translated from the Latin Lesley (bishop of Ross, ambassador of service-book, i. 97 and note 1-prayers

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416 INDEX. LLANDAFF. LOUIS XIV. for the departed kept in, 98 -taken out commons, 212-disagreements of the on its first revisal, ib. - amendments of house of commons with the, 275, note 1 the English, under Elizabeth, 119 and - impeachment of lord Latimer at the note 1-statute defending, 120-re- bar of the, 350-sentence of the, on vised, iii. 170-the, established the Mompesson, 351-object to titles asdistinguishing marks of the Anglican sumed by the commons, 354, note 3church, 172. unable to withstand the inroads of deLlandaff (bishopric of), despoiled in the mocracy. ii. 225-reject a vote of the Reformation. i. 105. commons, 226-motion to take into Loans, on property in 1524-25, raised by consideration the settlement of the govcardinal Wolsey, i. 33 and notes, 34, and ernment on the death of the king, ib. notes, 35, 36 -remitted to Henry VII. -their messelgers refused admittance by parliament, 37 to Elizabeth, not by the commons, ib. -retain their quite voluntary, nor without intimida-titles, 227 - Cromwell’s description tion, 244 and note 2 always repaid, of, 250 - embarrassing question con245-solicited under James I., 332-cerning the eligibility of peers, 285demanded by Charles I., and conduct commons desire a conference with the, of the people on it, 373 and note 2, 375, 286 and note - receive a letter from and note 1-committal and trial of sev-Charles II., ib. - declare the governeral refusing to contribute, 375-their ment ought to be in the king. lords, demand of a habeas corpus, 376-their and commons, 287-vote to exclude right to it debated and denied, 375, all who signed the death-warrant of 379. Charles I. from act of indemnity, 292 Lollards, the origin of the Protestant and note6 -in the case of lord Danby, church of England, i. 70

- their reap-not wrong in refusing to commit, 391 pearance and character before Luther, and note 2 -inquiry of the, in cases or ib. appeals, 397-their judicial power hisLondon Gazette, amusing extract from, torically traced, iii. 24-make orders ii. 416, note 4. on private petitions of an original naLondon, levies on the city of, i. 33, 89 ture, 25-antiquity of their ultimate -citizens of, inclined to the Reforma-jurisdiction, 26-pretensions of the, tion, 81-increase of, prohibited by about the time of the Restoration, ib., proclamation, 238-tumultuous assem-27 - their conduct in the case of Skinblies of, resigned to martial law, 242-ner and the East India Company, 28remonstrates against paying ship-mon- 30-state of, under the Tudors and ey, ii. 20-proclamation against build-Stuarts, 39 numbers from 1454 to ings near, 32 and note 3-proposed im-1661, ib., 40; and of the spiritual lords, provements in, ib. -lands in Derry ib., 41-every peer of full age entitled granted to.

34-offer of, to erect the to his writ of summons, ib. -privilege king a palace in lieu of a fine, &c., ib., of voting by proxy, originally by special note 1-corporation of, information permission of the king, ib. -
proceedagainst the, and forfeiture of their ings of the, in the convention of 1688, charter, 427-purchases the continued 96-dispute with, about Aylesbury enjoyment of its estates at the expense election, 263-266

-spiritual, in Scotof its municipal independence, 429. land. choose the temporal to the numLong (Thomas), member for Westbury, ber of eight, 309.

pays 41. to the mayor, &c., for his re-Lord’s Supper, controversies and four turn in 1571, i. 260. theories on the, i. 100-102- modern Long parliament summoned, ii. 94-dif- Romish doctrines on the, 101, note 2.

ferent political views of the, 96-its Loudon (Dr. - ), his violent proceedmeasures of reform, 96-99 - made but ings towards the monasteries, i. 83, little change from the constitution note 1. under the Plantagenets, 102 - errors of Louis XIV., his object in the secret treaty the, 104, 113-bill of, enacting their with Charles II., ii. 363-mutual disnot being dissolved against their own trust between them, 366-secret conconsent, 114 and note i. nections formed by the leaders of oppoLord-lieutenant, institution of the office sition with, 380, note 3 -his motives of, ii.

133. for the same, 382 and note i-secret Lords Portland, Oxford, Somers, and treaties with Charles, 387 mistrusts Halifax, impeached on account of the Charles’s inclinations, and refuses him treaties of partition, iii.

145. the pension stipulated for in the priLords, singularity of their sentence pro-vate treaty, 388-connection between nounced upon Anne Boleyn, i. 46, note! Charles II. and, broken off, 441 -his -house of, cold reception of the arti-views in regard to Spain dangerous to cles on religious reform prepared by the the liberties of Europe, iii. 136, 137

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INDEX. 417 LOVE. MARY STUART. acknowledges the son of James II. as note-his whole life fraught with king of England, 190-makes overtures meanness and treachery, ib., 125 - prefor negotiations, 205, 206, and note —
serves a secret connection with the exhausted state of his country, 210.

court of James, 214-extreme selfishLove (Christopher), executed for a con-ness and treachery of his character, spiracy, ii. 228 - effects of his trial and 215. execution, ib. and note 2. Marlborough (Sarah, duchess of), her Luders (Mr.), observations in his report influence over queen Anne, iii. 203. of election cases, iii. 49, note 1. Marriages, ordered to be solemnized beLudlow (general), and Algernon Sidney, fore justices of the peace, ii. 235. project an insurrection, ii. 350. Martial law, origin, benefits, and evils of, Lundy (colonel), inquiry into his con-i.

240-instances of its use, ib., 241duct, iii. 142. ordered under Charles I., 381, note 1_ Luther (Martin), his doctrines similar restrained by the petition of right, 381, to those of Wicliffe, i. 70-treatise of, 384.

answered by Henry VIII., 72-his Martin Mar-prelate, puritan libels so rude reply and subsequent letter to called, i. 208 and notes 1, 2. the king, ib. and note 3-his allowance Martyr (Peter), assists the Reformation of double marriages, 80, note 1-his in England, i. 102 and in drawing doctrine of consubstantiation, 100-up tie forty-two articles, 108, note 1rejects the belief of Zwingle, 101. objected to the English vestments of Lutherans of Germany, less disposed than priests, 112. the catholics to the divorce of Henry Martyrs under queen Mary, their numVIII., i. 80 and note 1. ber considered, i. 115, note 2. Mary (princess), unnatural and unjust M’Cric (Dr.), his misconception of a pas-proceedings in regard to, i. 48-denied sage in Hooker’s Ecclesiastical Polity, the enjoyment of the privileges of her i. 222, note 1. own religion, 96, note 2, 106.

Macdiarmid (John), his Lives of British Mary (queen of England), restores the Statesmen, ii. 47, note 1. Latin liturgy, i. 55-married clergy Macdonalds, their massacre in Glencoe, expelled, ib.-averse to encroach on iii. 821 and note 1. the privileges of the people, ib. -her Mackenzie (sir George), account of his arbitrary measures attributed to her Jus Regium, ii. 440. counsellors, 56 - duty on foreign cloth Macpherson (John), extract from his Col-without assent of parliament, ib. - lection of State Papers, iii. 124, note 1. torture more frequent than in all Madox (Dr. -, bishop of Worcester), former ages, ib. -unprecedented act his answer to Neal’s History of the of tyranny, zb. - sends a knight to the Puritans, i.

209, note 1. Tower for his conduct in parliament, Magdalen college, Oxford, expulsion of 67 her reestablishment of popery the fellows from, iii. 79-mass said in pleasing to a large portion of the nathe chapel of, 80. tion, 113-protestant services to, ib. - Magistrates under Elizabeth inclined to her unpopularity, 115-her marriage popery, i. 150 and note 1.

with Philip of Spain disliked, 114Mainwaring (-), his assertion of kingly cruelty of her religion productive of power, i. 407. aversion to it, 115-and of many beMalt, imposition set upon, i. 356, note 1. coming protestants, 116-her dislike Malvern priory interceded for at the dis-o.

Elizabeth, and desire of changing solution, i. 87. the succession, 117.

note 1 - origin of Manchester (Edward Montagu, earl of), the high commission court under, 204, suspected of being reluctant to com-note 1-use of martial law by, 242plete the triumph of the parliament in Knox’s attack on her government, and the contest with Charles I., ii. 176.

Aylmer’s defence of, 278-imposes duMann (sir Horace), notice of his letters ties on merchandise without consent from Florence, iii. 248, note 1. of parliament, 313. Maritime glory of England first traced Mary (queen of William III.), letters from the commonwealth, ii. 252. of, published by Dalrymple, iii. 125, Markham (chief-justice), his speech on note 1. the trial of habeas corpus, i. 377. Mary Stuart (queen of Scots), her prior Marlborough (John, earl of), and Sidney right to the throne of England. i.

130 (earl of Godolphin), Fenwick’s discov-  her malevolent letter to Elizabeth, eries obliged them to break off their 133, note a-her offensive and peculcourse of perfidy, iii. 132. iar manner of bearing her arms, 137

Marlborough (John, duke of), abandons and note 1 -her claim to the English the cause of the Revolution, iii. 124, throne, ib.-Elizabeth intrigues against, VOL. II. 27

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418 NDEX. MASHA. MONARCHY. though not unfavorable to her succes-copacy, 110-declared his approbation sion, 138-her difficulties in Scotland, of the death of Servetus, 130. note 2, and imprudent conduct, ib. - Eliza-Melville (Andrew), and the general assembeth’s treatment of, considered.

189-bly of Scotland, restrain the bishops, strength of her party claim to England, iii. 302 - some of the bishops submit, 140-her attachment to popery, and ib. -he is summoned before the counintent of restoring it, ib.

and note 2-cil for seditious language, 303-flies to combination in favor of, ib.- statute England, 304. against her supporters, and allusion to Members of parliament free from perherself, 145 and note 1 - bill against sonal arrest, i. 299, 306; iii. 261. her succession considered, ib. her Merchandise, impositions on, not to be succession feared by the puritans, 147 levied but by parliament, i. 312-book and note 2 - in confinement, and her of rates on, published, 315. son educated a protestant, 151-her Merchants, petition on grievances from deliverance designed by the catholics, Spain, i. 311 and note 1-petition against 162-her correspondence regularly in-arbitrary duties on goods, 312. tercepted, ib.-statute intended to Michele (Venetian ambassador), his slanprocure her exclusion, 163-her danger der of the English, i. 114, note 4 - states from the common people, 164-reflec- that Elizabeth was supected of protestions on her trial, imprisonment, death, tantism, 118, note. and guilt, ib. -her regal title and priv-Michell (-), committed to the Tower ileges examined, 165. by the house of commons, i. 350. Masham (lady), in the interest of pre-Middlesex (Lionel Cranfield, earl of), his tender, iii. 218. parliamentary impeachment, i. 364, Mass (service of the), not tolerated in 365, and note 1. Germany and England, i. 106-per- Military force in England, historical view formance of the, interdicted by the of, ii. 127-134 and notes. act of uniformity, 122-secretly per-Military excesses committed by Maurice mitted, ib. - instances of severity and Goring’s armies, ii. 174 and note 8, against catholics for hearing, ib. -

175 and note 1-by the Scotch, 176. penalty for, and imprisonments, prob-Military power, the two effectual securiably illegal, ib., note 3. ties against, iii. 148-always suborMassachusetts bay, granted by charter, dinate to the civil, 253. ii. 62. Militia, dispute on the question of, beMassacre of the Scots and English in tween Charles I. and the parliament, Ulster, iii. 372. ii. 127 and note 2, 133, 134-its origin, Massey, a catholic, collated to the dean-iii. 252-considered as a means of reery of Christ Church, iii. 69 and cruiting the army, 253 -established in note 2. Scotland, 312. Matthews’s Bible, 1537, Coverdale’s so-Millenary petition, treatment of, byJames called, i. 94-notes against popery in, I., i. 293 and note 3. ib., note. Ministers of the crown, responsibility of, Maximilian, his religious toleration in ii. 389; iii.

227, note 1-necessity of Germany, i. 119, note 1-said to have their presence in parliament, 186. leagued against the protestant faith, Ministers, mechanics admitted to bene143 and note 2. fices in England, i.

187 early presMayart (sergeant), his treatise in answer byterian, of Scotland, were eloquent, to lord Boltou, iii. 386. learned, and zealous in the cause of the Mayne (- ), persecution of, for popery, Reformation, iii.

303 their influence i. 151. over the people, ib. - interfere with the Mazure (F. A. J.), extracts from his His-civil policy, ib. toire de la Revolution, relating to James Mist’s Journal, the printer Mist com. II.

and the prince of Orange, iii. 73, mitted to Newgate by the commons notes 1, 2 -to the vassalage of James II. for libel in, iii. 269. to Louis XIV., 83, notes 1, 2 another Mitchell, confessing upon promise of extract concerning James II.‘s order to pardon, executed in Scotland at the Crosby to seize the prince of Orange, instance of archbishop Sharp, ii. 314. 180, note-his account of the secret Molyneux, his celebrated Case of Irenegotiations between lord Tyrconnel land’s being bound by acts ofparliament and the French agent Bonrepos, for the in England stated,”

iii. 386-resolu. separation of England and Ireland, 379, tions of the house of commons against note 3. his book, ib. Melanchthon (Philip), his permission of a Mompesson (sir Giles), his patents quesconcubine to the landgrave of Hesse, i. tioned, i. 350. 80, note  allowed of a limited epis-Monarchy of England limited, i. 18

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INDEX. 419 MONARCHY. MUTINY BILL. erroneously asserted to have been ab-Monmouth (county), right of election solute, 275. extended to, iii. 44.

Monarchy, established, tendency of the Monopolies, nature of, i. 260-victorious English government towards, from debate on, in the house of commons, 261 Henry VI. to Henry VIII., i. 60 not -parliamentary proceedings against, attributable to military force, ib.- 349-353.

abolished, ii. 224 - extraordinary Montagu (abbe), committed by the comchange in our, at the Revolution, iii. mons for publishing a book, iii.

268. 101 and note 1 - absolute power of, de-Montagu (Dr. Richard, bishop of Chifined, 280. chester), his Roman catholic tenets, Monasteries, their corruptions exposed by ii. 69-his intrigues with Panzani, the visitations of, i. 83-resignation 72-76. and suppression of, 84-papal bull for Montagu (lord), his speech in the house reforming, ib., note - act reciting their of lords against the statute for the vices, ib., note 1-feelings and effects of queen’s power, i. 124, and 125. note 1 their suppression, 85-might lawfully -brings a troop of horse to Elizabeth and wisely have been abolished, 86 - at Tilbury, 168 and note 1. several interceded for at the dissolu-Monteagle (lord), his suit with the earl tion, 87-evils of their indiscriminate of Hertford, i. 289, 290. and note 1. destruction, 88-immense wealth pro-Montreuil, his opinion on the plan of cured by their suppression, ib. and flight contemplated by Charles I., ii. note-how bestowed and distributed, 179, note 1-negotiation of, 184 and 88, 89, and note 1-alms of the, erro-notes 5, 6. neously supposed to support the poor, Mordaunt (lord), charges against, ii. 355. 91-in Ireland, in the 7th and 8th More (sir Thomas), opposes the granting centuries, learning preserved by, iii. a subsidy to Henry VII., i. 29, note 1331. his conduct upon another motion tor a Monastic orders averse to the Reforma-large grant, 32-apology for his protion, i. 81 - their possessions great but ceedings against Wolsey, 37 - beheaded unequal, 82
and note 1-evils of, in for denying the king’s ecclesiastical the reign of Henry VIII., ib.-reformed supremacy, 42-inclined to the divorce and suppressed by Wolsey, ib. and note 3 of Henry VIII., 78 and note 1.

-visitations of the, truly reported, 83 Morgan (Thomas), his letter to Mary - protestant historians in favor of, ib., Stuart, i. 164, note 1.

note _ pensions given to the, on their Morice (-, attorney of the court of suppression, 85, note 1. wards), attacks the oath ex officio, i.

Money-bills, privilege of the commons 214 - his motion on ecclesiastical concerning, i. 274-ancient mode of abuses, 259-his imprisonment and proceeding in, discussed, iii. 33. letter, ib. Monk (general George), his strong attach-Mortmain, effect of the statutes of, on ment to Cromwell, ii. 269-his advice the clergy, i. 81. to Richard Cromwell, 270-observa-Morton (John, archbishop of Cantertions on his conduct, ib. and notes 1, 2
bury), his mode of soliciting benevo takes up his quarters in London, lences, called “Morton’s fork,” i. 29271 his first tender of service to the his charge against the abbey of St. king, 273-can hardly be said to have Alban’s, 84, note. restored Charles II., but did not op-Mortuaries.

fees of the clergy on, limpore him so long as he might have ited, i. 77.

done, 274, note 1-not secure of the Mountnorris (lord), conduct of lord Strafarmy, ib. - represses a mutinous spirit, ford to, ii. 49, note 2, 50, note 1. and writes to the gentry of Devon, 275, Moyle (Walter), his Argument against a note 2-his slowness in declaring for standing Army, iii. 138, note 1. Charles, 275-urges the most rigid Murderers and robbers deprived of the limitations to the monarchy. 278-benefit of clergy, i.

71-the question suggests the sending the king’s letter of pardons to, considered, iii. 107, to the two houses of parliament, 279 note 1. -his character, 288 advises the ex-Murray (William), employed by king elusion of only four regicides from the Charles to sound the parliamentary act of indemnity, 291. leaders, ii. 184. Monks, pensions given to, on their sup-Murray (Mr. Alexander), arbitrary pro pression, i. 85 and note 1. ceedings of the commons against him Monmouth (James, duke of), remark on iii. 267-causes himself to be brought the death of, iii. 63 and note. by habeas corpus before the king’s Monmouth’s rebellion, numbers executed bench.

272. for, iii 72, note 1. Mutiny bill passed, iii. 148.

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420 INDEX. iASEB~. NORTHUMBERLAND. Naseby, defeat of Charles I. at. ii.

178 - the suppressed monasteries, 90-averse consequences of, 179. to the bill against the celibacy of Nation, state of the, proposition for an priests, 103-and to the Reformation, inquiry into the, iii. 143. ib. -such advanced into power under National antipathy to the French not so Mary, 113 -censured, &c. for religion great before the reign of Charles II., under that queen, ib. and note 4ii. 357. combination of the catholic, for Mary National debt at the death of William Stuart, 140. III., iii. 133, note 1 -rapid increase of Nonconformists, protestant, laws of Elizthe, 208 and note 1. abeth respecting, i. ch. iv. 175-229 - Nations, three, and three religions, in summoned and suspended by archIreland, iii. 384.

bishop Parker, 184-number of, in Naval transactions in the reign of Wil-the clergy, 187, note 1-deprived by liam III., iii. 126. archbishop Whitgift, 203 and note 1Navy of Charles I., reasons for increas-increased under Elizabeth, 227-reing, ii. 19. marks on acts against, ii. 333-avail Neal iDaniel), his History of the Puritans themselves of the toleration held out and Answer to Bishop Maddox, i. 209, by James II., iii. 77 note 1-statement of the puritan con-Nonjurors, schism of the, its beginning, troversy under Elizabeth, ib. iii. 110 - send forth numerous libelNetherlands, Charles I. negotiates with lous pamphlets, 214. the disaffected in the, ii. 20. Non-resistance preached by the clergy Neville (sir Henry), his memorial to and enforced in the Homilies, i. 405 James I.

on summoning a parliament, and note 1. i. 333. Norfolk (Thomas Howard, duke of) his Newark, charter granted to, enabling it letter to Wolsey on the grant of 1525, to return two members, iii. 45. i. 33, note 1 -letter of the council to, Newbury, battle of, its consequences to during the rebellion, 43, note 1 - comthe prevailing party ii 159. bines with the catholic peers against Newport. treaty of, ii. 209-observations Cecil.

136, note 2. on the, ib. and note 1. Norfolk (John, lord Howard, duke of), News, to publish any without authority, confidential minister of Henry VIII., determined by the judges in 1680 to be ruined by the influence of the two illegal, iii. 12 and note a. Seymours; execution prevented by the Newspapers, their great circulation in death of Henry, i. 45-continued in the reign of Anne, iii. 286-stamp prison during Edward’s reign, and is duty laid on, ib. restored under Mary, ib. -prevails on Neyle (Dr.

Richard, bishop of Lichfield), Henry VIII. to prohibit the English proceedings of the house of commons Scriptures, 94, note 1-_ a supporter of against, i. 335. the popish party, 96 -in prison at the Nicholas (Henry), a fanatic leader, i. 130, death of Henry VIII., ib.- proposed note 1. union of, with Mary Stuart, 143Nicolas (sir Harris), notice of his ” Procharacter, treason, and trial of, ib. ceedings and Ordinances of the Privy Norfolk, county of, assists to place Mary Council of England,”

i. 65, note 1. on the throne, and suffers greatly from Nimeguen, treaty of, hasty signature of persecution, i. 113 and note 2 -parthe, ii. 388.

liamentary inquiry into the returns Nine, council of, ii. 351 and note L
for, 273. Noailles (ambassador in England from Norman families, great number of, settle Henry II. of France), his conduct se-in Scotland, and become the founders cures the national independence, i. 59, of its aristocracy, iii. 292. note 4-unpopularity of queen Mary North of England, slow progress of the reported by, 113 - his account of her Reformation in, i. 103-council of the, persecutions, 116. note. its institution and power, ii. 48-act Noailles (marshal de), extract from his for abolishing, 101 and note 1 memoirs relating to Philip of Anjou, North (chief-justice), proclamation drawn iii. 206, note1. up by, against petitions, ii. 417. Nobility, pliant during the reign of North and Rich (sheriffs) illegally put Henry VIII., i. 61-responsible for into office, ii. 433. various illegal and sanguinary acts, b. Northampton (Henry Howard, earl of) -of the north, repressed by Henry declines to forward the merchants’ peVIII. and the court of star-chamber, titions against Spain, i. 310. 65-why inclined to the Reformation, Northampton, paymeit of ship-money 81 -of England become great under complained of in, ii. 8, note 1. the Tudors, deriving their estates froml Northunnberln’i (Algerr!on Percy, earl

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INDEX. 421 NORTON. PAMPILETS. of), his connection with the gunpowder Orleans (duchess of, sister (f Charles conspiracy, i. 397, note-and others, II.), her famous journey to Dover, ii. take measures against a standing army, 365. ii. 861. Orleans (duke of), favors the pretender, Norton (Mr.), his defence of the bill iii. 233, note 3. against non-resident burgesses, i. 265. Ormond (duke of), engaged in the inNottingham (Daniel Finch, earl of), holds terests of the pretender, iii.

217 and offices of trust under William III., iii. note 1 - his unpopularity with the 112 - unites with the whigs against Irish catholics, 378. the treaty of peace, 240. Ormond (James Butler, marquis of ), sent Nowell (Alexander), parliamentary in-to England by Charles II., ii. 264.

quiry into his election, i. 273. Orrery (Roger Boyle, earl of), a catholic, Noy (William), discovers an early tax ii. 368. imposed for shipping, ii. 19. Overbury (sir Thomas), his murder, i. “Nuisance,”

introduction of this word 345, - examination of, 346, note 2. into the Irish bill, iii. 66, note 2. Oxford (university of). measure adopted to procure its judgment in favor of the Oath, called ex officio, in the high com-divorce of Henry VIII., i. 79 - atmission court, i. 204-attacked in the tached to popery, 188 and note 1house of commons, 214-administered proceedings on doctrine of non-resistto papists under James I., 898-to the ance, 406-decree of the, against perclergy, 1640, ii. 115-of abjuration, iii. nicious books, ii. 440 -opposes the 190. measures of James II., iii. 81-tainted October club, generally Jacobites, iii. with jacobite prejudices, 242 and 218. note 1. (Ecolampadius (John), his doctrines on Oxford, short parliament held at, in the Lord’s Supper, i.

101. March, 1681, ii. 421. Offices, new, created at unreasonable Oxford (John de Vere, earl of), fined for salaries, as bribes to members of parhis retainers, i. 80-censured by queen liament, iii. 185. Mary’s council for his religion, 113, Officers of the crown, undue power ex-note 4.

erted by, i. 19. Oxford (Robert Harley, earl of), sends O’Neil, attainted in the parliament of abbe Gaultier to marshal Berwick to 1569, and his land forfeited to the treat of the Restoration, iii. 215crown, iii. 361.

promises to send a plan for carrying it Onslow (speaker), his assertion of the into effect, ib.-account of pamphlets property of the subject, i. 277.

written on his side, 216, note2 -hated Opposition to the court of Charles II., by both parties, 223-impeached of ii. 315. hightreason, 226 -
committed to the O’Quigley (Patrick), his case compared Tower, ib.

-impeachment against him with Ashton’s, iii. 158. abandoned, ib. and note 2-his speech Orange (William, Prince of), declares when the articles were brought up, ib. against the plan of restrictions, ii. 414 -remarks on his conduct before the Paget (William, first lord), his remark on Revolution, iii. 71-derived great ben-the doubtful state of religion in Eng. efit from the rebellion of Monmouth, land i. 103, note 2-advises the send72-overtures of the malecontents to, ing for German troops to quell com74-receives assurances of attach-motions, ib. - his lands increased by ment from men of rank in England, the bishopric of Lichfield, 105.

84-invitation to him, ib. and note 3 Palatinate, negotiation of Charles I.

for -his design of forming an alliitnce its restoration, ii. 21. against Louis XIV., 89 requested to Palatine jurisdiction of some counties take the administration of the govern-under the Plantagenets, i. 23. ment of England upon himself, 96 - Pale, old English of the, ill disposed to vote of the convention declaring him embrace the reformed religion in Ireand the princess of Orange king and land, iii. 355-deputation sent from queen of England. 101. Ireland to England, in the name of all Ordinance, a severe one of Cromwell, ii. the subjects of the, 357-delegates 302. from, committed to the Tower, ib. and Ordinance, self-denying, judiciously con-note 2. ceived, ii. 177,178, and notes 1,. Palgrave (sir Francis), notice of his Origin of the present regular army, ii. “Essay upon the Original Authority of 801. the King’s Council,” i. 65, note 1. Orkney (countess of ), receives large Pamphlets, account of some in the reign grants from William III., iii. 140. of Charles and James IT., iii. 167, note I

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422 INDEX. PANANI. PARLIAMENT. -and political tracts, their character of the clergy, 187, note 3-discussion and influence on the public mind at the of church authority with Mr. Wentcommencement of the last century, worth, 195 -prosecutes the puritans, 287, 288. 197-suppresses their “
prophesyings,” Panzani, a priest, ambassador to Charles 200 - defends the title of bishops, 225, I., ii. 63 - his report to the pope of Pa-note 1.

pists in England, 71, note 2. Parker (Samuel, bishop of Oxford), acPapists proceeded against for hearing count of his History of his Own Time, mass, i. 122-tracts and papers to re-ii. 369, note 3. call the people of England to their Parliament, the present constitution of, faith, 124 and note 1. recognized in the reign of Edward II., Papists of England, the Emperor Ferdi-i. 19-of Henry VII. secure the crown nand’s intercession for, i. 126-sub- to his posterity, 24-anxious for his sequent persecution of, 127-130 and union with Elizabeth of York, ib.notes attended the English church, power of the privy council over the 128-combinations of, under Elizabeth, members of, 67 -struggles of, against 139 - more rigorously treated, and em-the crown, 68 - complaint of the house igration of, 147, note 2-their strength of commons against Fisher, 77-diand encouragement under Elizabeth, vorce of Henry VIII. brought before 150 -emissaries from abroad, numbers the houses of, ib.-address of, moved and traitorous purposes of, ib.-exe-for Henry VIII. to receive back queen cuted for their religion under Elizabeth, Catherine, 79 - influence of the crown 151-concealment of their treacherous over, 263-statutes for holding, ii. 97, purposes, 154-lord Burleigh’s provis-98 and note -
enormous extension of ions against, in the oath of supremacy, its privileges, 140 and note 1-few acts 157, 158 his opinion that they were of justice, humanity, generosity, or of not reduced by persecution, but sever-wisdom from, manifested by, from their ity against, productive of hypocrites, quarrel with the king to their expulib.-petition against the banishment sion, 150-deficient in military force, of priests, 159-heavy penalties on, 152 - offers terms of peace to Charles I. 160 and note —
the queen’s death con-at Newcastle, 181-deficient in potemplated by, 161

-become disaffected litical courage, 200 eleven members to Elizabeth, ib., note 2 - excellent con-charged with treason, ib. - duration duct of at the Spanish invasion, ib., 168, of, proposed, 203-has no means to and note 1-depressed state of, ib.- withstand the power of Cromwell, 231
continued persecution of, between 1588 - is strongly attached to the estaband 1603,169 and note 1 statute relished church, 232-new one called stricting their residence, ib. - executed decidedly royalist, 309 -
its implacable for safety of the government, and not resentment against the sectaries, 329their religion, 169-their simple be-session of, held at Oxford in 1665, 333 lief construed into treason, ib.- the -tendency of long sessions to form nature of their treason considered, 170, opposition in, 338 supplies granted note 1-proportion of, in England, under by, only to be expended for specific obElizabeth, 180, note 2-excluded from jects, 340-strenuous opposition made the house of commons, 193 -treatment by to Charles II. and the duke of York, of, under James I., 395, 404, and notes 367-convention dissolved, iii. 122 - -state and indulgence of, under its spirit of inquiry after the RevoluCharles I., 403 and note, 404, ii. 63tion. 141, 142-annual assembly of, inclined to support the king, 64 and rendered necessary, 147-its members note 2 - report of, in England, by Pan-influenced by bribes, 185 its rights zani, 71, note 2 -
contributions raised out of danger since the Revolution, by the gentry, 87. 186, 187 -influence over it by places Parker (Matthew), made archbishop of and pensions, 255, 256-its practice to Canterbury, i. 119, note 1-his liberal repress disorderly behavior, 257 astreatment of bishop Tunstall, 126, note 2 sumed the power of incapacitation, 258 -his consecration admitted, ib., note 2- - debates in, account of their first pubhis sentence against lady Grey, 135-his lication, 288-their great importance, advice against Mary queen of Scots, 146 289 seat in, necessary qualification - speech of, against the papists, 148-for, 291.

Elizabeth’s coarse treatment of his wife, Parliament of 1685, remarks on its be179, note 1-defends the church litur-havior, iii. 56. gy and ceremonies, 179, 184, and note 1, Parliament (convention), accused of aban 186,189 his order for the discipline doning public liberty at the Restoraof the clergy, 184, note 1-summons tion, ii. 280-pass several bills of imnon-conformists, ib.-orders certificates portance, 291.

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INDEX. 423 PARLIAMENT. PETITION. Parliament (long), called back by the his right to a seat in parliament after council of officers, ii. 261 -
expelled resigning his see, i. 85, note 2. again, 262 -of seventeen years’

dura-Peasantry of England under the Plantagtion dissolved, 406 and note 2-long enets, i. 21. prorogation of, 416. Peers of England, under the PlantageParliaments, probable effect of Wolsey’s nets, a small body, i. 21

- their privimeasures for raising supplies without leges not considerable, ib. - disordered their intervention, i. 36-bill for tri-state of, under Henry VI. and Edward ennial, iii. 146-for septennial, 228. IV., 24

authority and influence of Parliament of Scotland, its model nearly abbots, &c. in the house of, 83-freethe same as that of the Anglo-Norman dom of the, from the oath of supremsovereigns, iii. 293-its mode of con-acy, 124-their interference with elecvocation, ib. - law enacted by James I. tions opposed, 266 - proceedings of relating to, 293, 294 -royal boroughs James I. against, for conduct in parin the fifteenth century, 295

-its leg-liamellt, 361 and note 3-not of the islative authority higher thai that of council could not sit in the star-chamEngland, 298 - summoned at his ac-ber, ii. 36, note. cession by James II., acknowledges the Peerage of England, probably supported king’s absolute power, 316. the commons against the crown. ii. 68. Parliament of Ireland, similar to an Eng-Peerages, several conferred on old Irish lish one, iii. 339-its constitution, 365 families, iii. 347. -meet in 1634; its desire to insist on Peerage bill, particulars of the, ii. 230. the confirmation of the graces, 368-Pelhams (the), resign their offices, and opposition in the, to the crown, 382-oblige George II. to give up lord Granin 1661, only one catholic returned to, viile,-iii. 284. ib. Pemberton (sir Francis, chief-justice), Parliament of the new protestant nation unfair in all trials relating to popery, of Ireland always whig, iii. 385. ii. 404, 405-his conduct on the trial Parliamentary party (old), assemble to of lord Russell, 432. take measures against a standing army, Pembroke (William Herbert, earl of), ii. 361. peers’ proxies held by, i. 371, note 1.

Parliamentary privilege, observations re-Pembroke (Philip Herbert, earl of), sits specting, iii. 276, note 1 in the house of commons. ii. 227.

Parry (Dr. William), executed for a plot Penal statutes, power of the crown to disagainst Elizabeth, i. 160-account of pense with, ii. 371-severity of the, him, 161, note 1. 373-laws enforced against some unParry (Dr.), committal and expulsion of, fortunate priests, 419 - against cathoby parliament, i. 272. lies in Ireland, iii. 380, 381. Parry (Thomas), his letter concerning the Penruddock enters Salisbury, and seizes papists under James I., ii. 396, note 3. the judge and sheriff, ii.

241 and note 2. Parsons (sir William), and sir John Bor-Penry (John, Martin Mar-prelate), tried lase (lords-justices), succeed lord Straf-and executed for libels against queen ford in the government of Ireland, iii.

Elizabeth, &c., i. 208 and note 1, 233. 372. Pensioners during the pleasure of the Partition treaty, earl of Portland and lord crown.

excluded from the commons, iii. Somers the only ministers proved to be 188, 189. concerned in the, iii. 183. Pepys (Samuel), his Diary - extract Party (moderate), endeavor to bring about from, concerning money expended by a pacification with Charles, ii. 151-Charles II., ii. 342, note 1.

negotiation with the king, broken off Permanent military force, national reby the action at Brentford, 153 - three pugnance to, iii. 250 - its number durpeers of the, go over to the king, ing the administration of sir Robert 157. Walpolr. 251. (See Army, and StandPassive obedience (doctrine of), passed ing Army.) from the Homilies into the statutes, ii. Perrot (sir John), his justice in the gov315-remarks on the doctrine of, 437.

ernment of Ireland, iii. 354-falls a Paul IV. (pope), his arrogant reply to the sacrifice to court intrigue, 354,355. message of Elizabeth, i. 118
and note i, Persecution, religious, greater under 123. Charles II. than during the commonPaulet (sir Amias), his honorable and wealth, ii. 336.

humane conduct to Mary Stuart, i. 165, Persons (father), his book on the succesnote 1. sion to the English crown, i. 283, note 1 Peacham (Rev. — ) prosecution of, for -his Leicester’s Commonwealth, ib. a libellous sermon, i. 337. Petition of Right, its nature and proceed-. Pearce (Dr Zachary, bishop of Rochester) ings in, i. 312, 381, and notes; ii. 10.

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424 INDEX. PETITION. PRESBYTERLLNS Petition and Advice, particulars of the, executed, ii. 427 and note 1-sacrificed ii. 249-empowers Cromwell to appoint to the wicked policy of the court, ib. a successor, 255.

Pluralities, the greatest abuse of the Petitions, law relating to. ii.

314-for church, i. 212-bill for restraining, the meeting of parliament checked by 213. a proclamation of Charles II., drawn Pole (cardinal Reginald), actively emup by chief-justice North, 417-inter- ployed by the pope in fomenting refering with the prerogative repugnant bellion in England, i. 43 and note 2to the ancient principles of our mon-procures the pope’s confirmation of archy, ib. grants of abbey lands, 114

conspirPetre (father), with a few catholics, takes acy of his nephew against queen Elizthe maniagement of affairs under James abeth, 124 and note 2. II., iii. 70 and note 2-James II.‘s in-Polity of England at the accession of tention of conferring the archbishopric Henry VII., i. 18. of York on, 80 and note 1. Political writings, their influence, iii. Petty (sir Wil’iam), his account of the 287. lands forfeited and restored in Ireland. Poor, the, erroneously supposed to have iii. 377, note 3. been maintained by the alms of monPhilip II. (king of Spain), his temptation asteries, i. 91-statutes for their proto the English to dethrone Elizabeth, vision, 92 and note. i. 284, note. Pope, his authority in England, how Philopater(Andreas Persons), his account taken away, i. 76-81

-his right of deof the confederacy against Cecil, i. 136, posing sovereigns, 153. note’-justifies deposing a heretic sov-Popery preferred by the higher ranks in ereign, 153, note 2. England, i. 113 - becomes disliked Pickering (lord-keeper), his message to under queen Mary, 115.

the house of commons, i. 259. Popish plot, great national delusion of Pierpoint (Henry, lord), hopes to settle the, ii. 400. the nation under Richard Cromwell, Popular party, in the reign of Charles ii. 256 his aversion to the recall of 1I., its connection with France, ii. Charles II., 277. 380. Pitt (William, earl of Chatham), the in-Population state of, under the Plantag. consistency of his political conduct, iii. enets, i. 23 and note 1. 285. Portland (William Bentinck, earl of), rePius IV.

(pope), his embassy to Eliza-ceives large grants from William III., beth, i. 123-moderation of his gov-iii. 140, note 1. ernment, ib.-falsely accused of sane-Pound (Mr.), sentenced by the startioning the murder of Elizabeth, 124, chamber, ii. 40, note 2. note 2. Power, despotic, no statutes so effectual Pius V. (pope), his bull deposing Eliza-against, as the vigilance of the people, beth, i. 142 -most injurious to its own iii.

286. party, 144-his bull explained by Gre-Poyning’s Law, or Statute of Drogheda, gory XIII., 153. provisions of, iii. 344, 345-its most Place bill of 1743, iii. 255 and note 2. momentous article, 345, 346-bill for Plague in 1665, ii. 349. suspending. 355 -attempts to procure Plan for setting aside Mary, princess of its repeal, 385. Orange, at the period of the Revolu-Predestination, canon law against, under tion. iii. 73 and note 1. Edward VI., i. 111, note 1 - dispute Plantagenets, state of the kingdom under on, 392-394 and notes. the, i. 20-24- privileges of the nation Prerogative, confined nature of the royal, under the, 20-violence used by their i. 18 - strengthened by Henry VII.. officers of the crown, 21-inconsider- 25 -undue asfumption: of, on the disable privileges of the peers, gentry, solution of parliament, by Charles I., and yeomanry, ib.

their courts of 404 -of a catholic king, act for limitlaw, ib.-constitution of England under ing the, ii. 412-of the kings of Engthe, 282, ii. 102 -conduct of with re-land in granting dispensations, iii. 65.

gard to the government of Ireland, iii. Prejudices against the house of Hanover, 844. iii. 245. Plays and interludes satirizing the clergy, Presbyterians, their attempt to set up a i. 95-suppression of plays reflecting government of their own. i 209 - eron the conduct of the king, 362, roneous use of scripture by, 218note 1. consider the treaty of Newport as a Pleadings, their nature and process ex-proper basis for the settlement of the plained, i. 21, note 1. kingdom, ii. 281 - deceived by the king, Plunket (titular archbishop of Dublin), 319-remarks on Charles II.‘s conduct

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INDEX. 425 PRESBYTERIAN. PROTES!ANTS. to, 329-implore his dispensation for Priors, pensions given to, on their suptheir nonconformity, ib.

pression, i. 85, note 1. Presbyterian party, supported by the Prisoners of war made amenable to the city of London, ii. 195-regain their laws of England, i. 165. ascendency, 209-ministry solicit a Privilege, breach of, members of parliarevision of the liturgy, 306-clergy of ment committed for, iii. 257 - punishScotland, their power and attempts at ment of, extended to strangers, 259 - independence, iii. 300, 301-restrained never so frequent as in the reign of by James VI., 304 - intermeddle again William III., 260. with public affairs, 305-church, its Privilege of parliament, discussed, iii. obstinacy, 321, notes 1, 2. 31. 32-not controllable by courts of Presbyterian discipline of the Scottish law, 264

- important, the power of church, restored, iii. 309. committing all who disobey its orPresence, the real, zeal of Henry VIII. ders to attend as witnesses, 267-danin defending, i. 93 - principal theories ger of stretching too far, 273 and note 2 concerning the, 100-103 and notes-

-uncontrollable, draws with it unonly two doctrines in reality, 101, note 2 limited power of punishment, 275, 276,  believed in England in the seven-and note 1. teenth century, ii. 66 and note 2. Privy council, illegal jurisdiction exerPress, liberty of the, iii. 165,163, note 1.

cised by the, i. 61 - the principal Pretender (James Stuart, the), acknowl-grievance under the Tudors, ib. -its edged king of England by France, and probable connection with the court of attainted of hightreason by parlia-star-chamber, 64-authority of the, ment, iii.

190,191 -has friends in the over parliament, 67 illegal committory government, 217, 218, and notes ments of the, under Elizabeth, 235-lands in Scotland, and meets with power of its proclamations considered, great success, 224 - invades England, 237 - all matters of state formerly reib.

- the king of Sweden leagues with, solved in, 342 and note 1 -its power of for his restoration, 233 and note 2-imprisoning, 375 and note 1 -
combecomes master of Scotland, and admission for enabling it to interfere with vances to the centre of England, 244-courts of justice, ii. 16, note 3-withrebellion of 1745 conclusive against the out power to tax the realm, 27-of possibility of his restoration, ib. and Ireland, filled with catholics by James note 2-deserted by his own party, 246 II., iii. 379. -insulted by France, ib. and note 3. Privy-seal, letter of, for borrowing money, Priests, antiquity and evils of their celi-i. 244 and note 2, 245, and note 1, 373. bacy, i. 102, note 2 - catholic, resigned Proceedings against Shaftesbury and Color deprived under Elizabeth, 120 
lege, ii. 424 and note 1. pensions granted to, ib., note 2-Rom-Proclamation of Henry VII., controlling ish, persecution for harboring and the subject’s right of doing all things supporting, 128 - the most essential not unlawful, i. 20 of the sovereign part of the Romish ritual, 129-secret in council, authority attached to, 237 travels and deceitful labors of, ib. - - unwarranted power of some of those unite with sectarians, ib. - ordered to under Elizabeth, 236. 238-of martial depart from England unless they ac-law against libels, &c., 241 - of James knowledge the queen s allegiance, 171. I. for conformity, 294-for summonPriests and Jesuits, intrigues rf, ag inst ing his first parliament, 296-house Elizabeth, i. 144-statute against, ib. of commons’ complaint against, 322Priests (popish seminary), executed un-debate of judges, &e., on, 330-illeder Elizabeth, i. 151-lord Burleigh’s gality of, ib., 331, and note - issued justification of their persecution, 155 under Charles I., ii. 31, 32. -ordered to quit the kingdom, 159. Projects of lord William Russell and colPriests (Romish), in Ireland, engaged in onel Sidney, ii. 430. a conspiracy with the court of Spain, Prophesyings, religious exercises so called, iii. 359-ordered to quit Ireland by i. 200

-suppression of, ib. - tolerated proclamation, ib. by some prelates, ib.

Prince of Wales (son of James II.), sus-Propositions (the nineteen), offered to picions attending the birth of, un-Charles I. at York, ii. 136
and note 2. founded, iii. 85 and note 1. Protestants, origin of the name, i. 105, Principles of toleration fully established, note 2-number of, executed under iii. 242. queen Mary, 115, note 2-increased by Printing, bill for the regulation of, iii. 11. her persecution, 116-never approved Printing and bookselling, regulated by of religious persecution, 130, note 2 - proclamations, i. 239 and notes 2 3, 4, faith, league of the catholic princes 240, and note 1. against the, 143, note 2-origin of the

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426 INDEX. PROTESTANTISM. REFORMATION. differences between, 175-emigration Purveyance, abuses of, i. 301-proceedof, to Germany, 176-dislike of, to the ings of parliament against, ib.; ii. 299 English liturgy and ceremonies, 176- -taken away, 101. 180 and notes - proportion of, in Eng-Pyrenees, treaty of the, ii. 267. land, under Elizabeth, 180, note 2 favor Arabella Stuart’s claim on the Quartering of soldiers (compulsory), crown, 285, note 1 - dissenters, bill to treason of, ii.

108. relieve, lost off the table of the house of lords, iii. 168

succession in dan-Raleigh (sir Walter), instances of his flatger, 214, note 3, 215-church estab-tery of monarchy, i. 275,276, and note 1 lished by Elizabeth in Ireland, 350- -his execution, character, and probamany of the wealthier families conform ble guilt considered, 347 and note lto the, 383. his first success in the Munster colonies, Protestantism, dissolution of the monas-iii. 361. teries essential to its establishment, Ranke’s “

History of the Popes,” notice i. 85-strengthened by the distribu-of, i.

127, note 2. tion of their revenues, &c., 96-slow Reading, a Romish attorney, trial of, ii. progress of, in the north of England, 403. 103.

Real presence denied in the articles of the Protestation of the house of commons church of England, i. 101, 102 the against adjournment in 1621, i. 360. term not found in the writers of the Prynne (William), prosecution of, by the sixteenth age, except in the sense of star-chamber, ii. 43 and note 3. 44. ” corporal,” ii. 66, note 3. Pulteney (Mr.), his remark on the stand-Rebellion (northern), excited by the harsh ing army, iii. 251, 252.

innovations of Henry VIII.; appeased Purgatory, doctrine of, abolished by the by conciliatory measures, but made a reformers, i. 98. pretext for several executions of persons Puritans address Elizabeth against the of rank, i. 42 in Ireland, in 1641, iii. queen of Scots, i. 145 laws of Eliza-364, 372-success of the insurgents in beth respecting, i. chap.

iv. 175-229- the, 374-of 1690, forfeitures on acrapid increase of, under Elizabeth, 183 count of the, 380. — begin to form conventicles, 185-ad-Recovery (common), for cutting off the vised not to separate, ib., note 3-first entail of estates, its origin and estabinstance of their prosecution, 186-sup- lishment, i. 27. porters and opposers of, in the church Recusancy, persecutions for, under Elizand state, ib. -their opposition to civil abeth, i. 126 - heavy penalties on, unauthority in the church, 189-not all der Elizabeth, 151, 152 annual fines opposed to the royal supremacy, 192 paid for, 160, note 2. and note  predominance of, under Recusants, severity against, productive Elizabeth, 193 and note -prosecuted of hypocrites, i. 159-annual fines by the prelates, 197-partly supported paid by, 160, note 2-statute restrainby the privy council, ib.-
tolerated to ing their residence, 168-penalties preserve the protestant religion, 199-upon, under James I., 396, note 1, 397, deprived by archbishop Whitgift, 203 note. and note 1 - lord Burleigh favorable to, Reed (alderman Richard), his treatment 205-libels published by, 207 and for refusing to contribute to the benevnotes 1,3. 208, and note I-their church olence in lb45, i. 39. government set up, 209-dangerous ex-Reeves (John), his History of English tent of their doctrines, 210-their sen-Law, character of, i, 28, note 1. timents on civil government, ib. -se-Reformation of the church gradually prevere statute against, 215-state of their pared and effected, i. 70-disposition controversy with the church under E!iz-of the people for a, 80 -uncertain adabeth, 216, note 1 -
object to the title of vance of the, after the separation from bishops, 225, note I Elizabeth’s re-Rome and dissolution of monasteries, ported offer to, 227, note 2-civil lib-92- spread of, in England, 93 -proerty preserved by the, 231-their ex-moted by translating the Scriptures, pectations on the accession of James I., 94, 95  principal innovations of the, 294, note 1-summoned to a conference in the church of England, 97-103  at Ham pton Court, ib. - alarmed at the chiefly in towns and eastern counties of king’s proceedings, 300-ministers of England, 103-Gerlmau troops brought the, deprived by archbishop Bancroft, over at the time of, ib., note 2-meas386 and note - character of the, ib. ures of, under Edward VI., too zealously - difference with the sabbatarians, conducted, 104 - toleration not consid888 - doctrinal puritans, 389 and ered practicable in the, 105 - in Gernote 1. many, caused by vices of the superior

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INDEX. 427 REFORMATIO. RUSSELL. ecclesiastics, 110-its actual progress Richelieu (cardinal, Armand du Plessis), under Edward VI., 113. his intrigues against England, ii. 22, Reformatio Legurn EcclesiasticUm, ac-note 2. count of the compilation and canons Richmond (Charles Stuart, duke of), his of, i. 111, note 1-extract from, 112, marriage with Miss Stewart, ii. 346. note. Richmond Park extended, ii. 18. note 3. Reformers, their predilection for satirical Ridley (Nicholas, bishop of London), liblibels, i. 207-for the Mosaic polity, erality of, to the princess Mary, i. 106

211, note 1 - of Scotland, their extreme -assists in remodelling the English moderation, iii. 302 and note 1. church, 107, note-firmness of, in the Refugees, popish, their exertions against cause of lady Jane Grey, 109-moderElizabeth, i. 144, 150. ation in the measures of reform, ib.

Regalities of Scotland, their power, iii. Right of the commons as to money bills, 298. i. 275; iii. 33. Regicides, execution of the, ii. 294-Robbers and murderers deprived of the some saved from capital punishment, benefit of clergy, i. 71. 310. Rochester (Laur. Hyde, lord), his dismisReligion, reformation of, gradually pre-sal, iii. 69, 70, and note 1 -creates great pared and effected, i. 70-state of, in alarm, 70 and note 3, 71. England, at the beginning of the six-Rockingham Forest increased, ii. 18. teenth century, 71-different re-Rockisane (archbishop of Prague), his restraints of governments on, 104-Ro- ply to cardinal Carjaval at the council man catholic, abolished in Scotland, of Basle, i. 196, note i.

iii. 299. Rockwood (- ), persecution of, for popReligious toleration, iii.

167-infringe- ery, i. 149, note 2 ment of, 239. Roman catholic prelates of Scotland, inRemonstrance on the state of the king-eluding the regulars, allowed two thirds dom under Charles I., ii. 122 and of their revenues, iii. 301. note 1. Romish priests, address to the king to Republican party, first decisive proof of send them out of the kingdom, ii. 331 a, ii.

212-composed of two parties, and note 3-their policy, 369 -superlevellers and anabaptists, 232-gov- stition, general abhorrence of the, iii.

ernment by, ill-suited to the English 61. in 1659, 262 - no, in the reign of Wil-Root and branch party, ii. 116. liam III., iii. 121,122. Ross (Thomas), executed for publishing Reresby (sir John), his conversation with at Oxford a blasphemous libel, iii. 311. lord Halifax, ii. 421 and note 2. Royal families of Ireland (O’Neal, O’ConRestitution of crown and church lands, nor, O’Brien, O’Malachlin, and Macii. 295. Murrough).

protected by the English Restoration of Charles II. remarks on law, iii.

337. the unconditional, ii. 281-popular Royal power, its constitutional boundajoy at the, 290-chiefly owing to the ries well established, iii. 9.

presbyterians, 309. Royalists, decimation of the, by CromRevenue, settlement of the. iii. 116-well, ii. 242 and note 2-discontent statement of the, by Ralph, ib., note 1 of the, 297 and note 1. - surplus, in Ireland, dispute between Rump, the parliament commonly so the commons and the government con-called, ii. 231 and note 2-fanatical cerning its appropriation, 388. hatred of, to the king, ib. Revolution in 1688, its true basis, iii. 68 Rupert (prince), Bristol taken by, ii. 159 -its justice and necessity, 86-argu- -and Newcastle defeated at Marston ment against it, 87-favorable cir-Moor, 166 - consequences of the same, cumstances attending the, 91, 92-ib. salutary consequences resulting from Russell (admiral), engaged in intrigues, the, 93 - its great advantage, 95

- its iii. 125, 126-his conduct at the battle temperate accomplishment, 109 in of La Hogue, and quarrel with the Scotland, and establishment of pres-board of admiralty, ib.-parliamentbytery, 317. ary inquiry into their dispute, 143. Reynolds (Dr.), at the Hampton Court Russell (lord), sincerely patriotic in his conference, i. 294, note 3. clandestine intercourse with France, Richard II., statute of, restraining the ii. 383
and note 2-and the earl of Espapal authority, i. 64-supp’y raised sex concert measures for a resistance under, ii. 26-his invasion of Ireland, to the government, 430-they recede iii. 842. from the councils of Shaftesbury, ib. - Richard III., first passed the statute of evidence on his trial not sufficient to fines, i. 26. justify his conviction, 431 and note 3.

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428 INDEX. BYE-HOUSE PLOT. SHAFTESBURY. Rye-house plot, ii. 400 and note 1. assembly of the, 321 and note 1 - Ryswick (treaty of), particulars relating assemblies of the, judicious admixture to, iii. 136, 137. of laymen in, ib. Scots, the, conduct of. to Charles I., ii. Sabbatarians, origin and tenets of, i. 389 190 and notes 1, 2, 191, and note I - and note 1. conclude a treaty with Charles, and Salisbury (countess of), her execution, invade England, 208. causes of, i. 43-not heard in her de-Scots presbyterians sincerely attached to fence, 44, note 1. king Charles, ii. 198 and note 1. Salisbury (Robert Cecil, earl of), extenu-Scot and lot boroughs, very opposite spe. ates the wrongs imputed to Spain, i. cies of franchise in, iii. 49 and note 1. 309  his scheme for procuring an an-Scripture, English translation of pronual revenue from the cnmmons, 325-scribed, i. 94 - permitted to be read, his death and character, 327, 828, and and prohibited, ib. and note 1effect notes 1, 2 -(William Cecil, earl of), his of their general use, ib. forest amerciament, ii. 18.

Scroggs (chief-justice), impeached for Sampson, the puritan, his remonstrance treason, ii. 423. against the papists, i. 147. Scudamore (lord), anecdote of, ii. 69 and Sancroft (Thomas, archbishop of Canter-note 1. bury) his scheme of comprehension, Seal, great, lord-keeper Littleton carries iii. 169. it to the king, ii. 160 - new one ordered Sandys (sir Edwin), his commitment to to be made by the parliament ib. the Tower, i. 356, 357 and note 2, 364. Seats in parliament, sale of, iii.

291. Savoy, conference at the, in 1661, ii. 320 Secret corruption, iii.

256. -animosity between the parties, 322 Secret historical documents brought to -conduct of the churchmen not justi-light by Macpherson and Dalrymple, fiable, 321 and note 1-only productive iii. 123. of a more exasperated disunion, ib. - Secretservice money disposed of to corgeneral remarks on, ib. 323. rupt the parliament, iii. 185 and note 1. Sawyer (sir Robert), expelled from the Secret treaty of 1670, anecdotes and parhouse of commons, iii. 114 and notes I, 2. ticulars relating to, ii. 383 and note 1-. Scambler (Edmund, bishop of Norwich), differences between Charles and Louis his character, i. 226. as to the mode of its execution, 364, Scandinavia, colonists from, settle on the 865. coasts of Ireland, iii.

328. Sectaries, persecution or toleration the Scheme of comprehension and indulgence, only means of dealing with, i. 207. ii. 356-observations on the, iii. 169. Selden (John), summoned before the starSchism in the constitutional party under chamber, i. 344. Charles I., ii. 120 and notes, 4 - of the Septs of the north of Ireland, liberty ennonjurors, iii. 171, 173. joyed by, iii. 336-of Munster and Schools (free), in Ireland, act passed in Leinster, their oppression, ib. -offers the reign of Elizabeth for erecting, iii. made by some for permission to live 858, note 2. under the English law. 337. Scotland, uncertain succession of the Sergeant of the house of commons, auEnglish crown in the royal family of, thority of the, i. 267-271. i. 131,166-its claims not favored, 137 Session, court of, of Scotland, its origin - puritanical church government es-and judicature iii. 299. tablished in, 211 -union with England Settlement, act of, rights of the reigning brought forward, 305 and note 2,306 and monarch emanate from the parliament note 1, 307 and notes-troubles com-and people, by the, iii. 95-Blackmenced in, ii. 86, 87, and note 2 -privy stone’s view of, 177, note 2. council of, abolished, iii. 198 and note 2

Settlement of the revenue, ii. 297. - its early state wholly Celtic before the Seymour (lord), of Sudeley, courts the twelfth century, 292-its want of rec-favor of the young king, Edward VI., ords, 293-its wealth, 299-character i. 52-entertains a hope of marrying of its history from the Reformation, 300 princess Elizabeth, ib. - accused of  church of, still preserves the forms treason, and not heard in his defence, of the sixteenth century, 301, 820-ib. -warrant for his execution signed establishment of episcopacy in. 306-by his brother, 53. could not remain indifferent during the Seymour (William, marquis of Hertford), civil war in England. 312 -crown of, married to lady Arabella Stuart, i. 344.

tendered to William and Mary, 318-Seymour (sir Francis), his refusal to pay episcopal and presbyterian, chief con-ship-money, ii. 88 and note 4.

troversy between, ib. - practice ob-Shaftesbury (Anthony, third earl of), deserved in summoning the national claration of indulgence projected by,

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INDEX. 429 SHAFTESBURY. SPAIN. ii. 371 - fall of, and his party, 375 -
vert the liberties of the pale, 356 -his bad principles of, 409-desperate coun-disappointment at the want of firmsels of, 431 committed to the Tower ness in queen Elizabeth, 357, note 2with three other peers, by the lords for account of the protestant church in calling in question the legal continu-Ireland, 358, note 2. ance of parliament, after a prorogation Silenced preachers set at liberty, i. 185, of twelve months, iii. 270. note. Shaftesbury and College, impeachment of, Six articles, law of, on the celibacy of ii. 424, note 2, 425, and notes 1, 2, 3. priests, i. 102. Sharp (James), archbishop of St. An-Skinner (Thomas), case of, against the drew’s. au infamous apostate and perse-East India Company, iii. 28 -comcutor, iii. 314. mitted by the commons for breach of Sheffield (sir Robert), confined in the privilege, 30. Tower for his complaint against Wol-Smith (sir Thomas), his Treatise on the sey, i. 62, note 1.

Commonwealth of England, cited conShelley (sir Richard), reluctantly permit-cerning the star-chamber, i. 61 - his ted to enjoy his religion, i. 148. account of causes belonging to the Shepherd (Mr.), expelled the house of court of star-chamber, 66-his natural commons, i. 391. son sent with a body of English to setSherfield (-), recorder of Salisbury, tie in Ireland, iii. 361. star-chamber prosecution of, ii. 69, Soap, chartered company for making, ii. note 1. 18. Sherlock (Dr.), his work entitled Case of Somers’lord chancellor), puts the great Resistance of the Supreme Powers, ii. seal to blank powers, iii. 145 and notes 437 and note 1 - his inconsistency, iii. 1,. 109, note a pamphlet, entitled A Somers, Halifax Wharton, Oxford, and Second Letter to a Friend, attributed Sunderland, kept out of administrato him, ib. tion by the dislike of queen Anne, iii.

Ship-money, its origin and Imposition, ii. 204. 19 extended to the whole kingdom, Somerset (Edward Seymour), duke of, 22 trials concerning, 23 and note 4, obtains a patent constituting him pro24, and notes 2, 3-case of Hampden, tector; discovers a rival in his brother, 24 and note 2-the king’s proposal of lord Seymour; signs his warrant for resigning for a supply, 92, note 1 -de-execution, i. 53-deprived of his auclared illegal, 99. thority, ib. - accused of a conspiracy Shirley (sir Thomas), parliamentary pro-to murder some of the privy councilceedings on his arrest, i. 299. lors, tb.-evidence not insufficient, ib. Shirley (Dr.), and sir John Fagg, case -inclined to the Reformation, and between. iii.

31. powerful in the council, 96-his deShower, infamous address of the barris-struction of churches to erect his palters of the Middle Temple under the ace, 105 designed the demolition of direction of. iii. 76.

Westminster Abbey, ib. -his liberality Shrewsbury (earl of), engaged in in-to the princess Mary, 106, note 2. trigues, iii. 125 -his letter to king Somerset (Robert Car, earl of), his guilt William after Fenwick’s accusation of of the murder of Overbury examined, him, 126 and note i. i.

345, 346 and note 2. Shrewsbury (lady), fine and imprisonment Somerville, executed for a plot against of, i. 344. Elizabeth, i. 161. Sibthorp (- ), his assertion of kingly Southampton (Thomas Wriothesley, earl power, i.

407. of), his estate in the New Forest seized, Sidney (sir Philip), writes a remonstrance ii. 18 his opposition to the statute against Elizabeth’s match with the duke against nonconformists, 333. of Anjou, i. 233.

Southey (Robert), his assertion on perseSidney (Algernon), receives pecuniary cution and toleration in the church of gratifications from France, ii. 385 -was England, i. 130, note 2. a distressed man, 386-his dislike to Sovereigns, their inviolability to criminal the prince of Orange, ib.- his convic-process examined, i. 165, 166-their tion illegally obtained, 434 and note 1 power weakened by the distinction of -
observations on his character and party, iii. 283. conduct, ib., 435.

Spain, design of transferring England to Sidney (sir Henry), his representation to the yoke of, i. 59-dislike of the Engqueen Elizabeth of the wretched conlish to, under queen Mary, 115 - king dition of the Irish, iii. 353 and note 4-James’s partiality for, 309 and notes his second government in Ireland ex-1, 2-connection with England under cites resistance by an attempt to sub-James I., 328 - his unhappy predilec

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430 INDEX. SPEAKER. STATUTE. tion for, 349 and note 1-. treaty of ments inflicted by the, ib., 40, and royal marriage with, 358, 362-policy notes 1, 2-fines and sentences of the, of Charles I. with, ii. 22 and notes, 2 -

41 - corrupt and partial, ib., note 2decline of the power of, after the treaty act for abolishing, 99 and note 3of the Pyrenees, 357. attempt to revive the, 317 report of Speaker of the house of commons, power committee of the lords concerning the, of, concerning bills, i. 262, note.

318. Speech freedom of, in parliament, ii. 12. State, council of, consists of forty-one Speed (John), his valuation of the sup-members, ii. 227-tests proposed to pressed monasteries, i. 88, note 2. the, to which only nineteen subscribed, Spenser (Edmund), his Account of Ire-ib. land, iii.

354, note 2, 362-the first Stationers, company of, power given to, three books of his Faery Queen, where over printers and booksellers, i. 239.

written, ib. Statute of the 15th of Edward II., recogSpies shculd be heard with suspicion in nizing the existence of the present concases of treason, iii 161. stitution of parliament, i. 19-of 11th Spire. protestation of, by the Lutheran Henry VII. protecting persons in the princes against mass, i. 105, note 2. king’s service, 24-extraordinary, givSports, declaration of, by James I., i. 390 ing to Henry VIII. all moneys paid by -by Charles I., ii. 60 way of loans, &c., 37-similar act reSprot, a notary, executed in Scotland for leasing to him all moneys he had subconcealing letters, iii. 311. sequently iorrowed, 38-11th Henry Stafford (William Howard, lord), con VII. for payment of arrears of benevovicted of the popish plot, ii. 405 and lences, 29 and note 2-of fines enacted note 1. by Henry VII.

merely a transcript from Standing army, without consent of par-one of Richard III., 26-object of this liament, declared illegal, iii. 107 and enactment, ib. - of Edward I. de donis note 2-national repugnance to its conditionalibus, 27 - revived under rise, 251. Henry VII., and their penalties eaStandish (Dr. — ), denies the divine forced, 80-of 1st Henry VIII. for privileges of the clergy, i. 71-cen- amendment of escheats, 31-of 11th sured in the Journals, 7 Henry VIII., Henry VII. giving power to justices of 72, note, the peace, ib.- for the exclusion of St.

Bartholomew (day of), two thousand princess Mary from the succession in persons resign their preferments, ii. 325. 1534, 48-of Henry VII.

concerning St. Germain’s (court of), preserve a the court of star-chamber, 66 and note 2, secret connection with Godolphin and 67 and note 2-of Henry VI. for compelMarlborough, iii. 214. ling clerks to plead their privilege, 71 St. John (Oliver), declines to contribute -of 4th Henry VII.

for branding clerks to the benevolences, i. 327 - his state-convicted of felony, ib.- of Richard II. ment of means for defence of the royal restraining the papal jurisdiction, 77prerogative, ii. 25, 26. of Henry VIII. taking away appeals to St. John’s College, Cambridge, non-con- Rome, 78-of ditto on the consecration formists of, in 1565, i. 188, note 2. of bishops, 79-of mortmain of EdSt. Paul’s Cathedral, proposed improve-ward 1. and III., 81-of 27th Henry ment of, ii. 33. VIII. censures the vices of monasteries, St. Phelipe, remarkable passage in his 84, note l-of Henry VIII., lst Edward Memoirs, iii. 206, note 2. VI., 14th Elizabeth, for support of the Btar-chamber, court of, the same as the poor, 92 and note 1

of 34th Henry ancient Concilium Regis, or Ordina-VIII. against the sale and reading of rium, i. 63 and note I-account of the Tindal’s Bible, 94
and note 1-of 2d, powers of, 64-augmented by cardinal 3d, and 6th of Edward VI. on the celiWolsey, ib. -original limitation and bacy of priests, 102-of 2d Edward VI. judges of the, 66 and note 2-causes against irreverently speaking of the within the cognizance of the, 67 its sacrament, 103-for abolishing chanarbitrary and illegal powers, ib. -not tries, 104 and note 2a-of 2d and 3d the court erected by Henry VII., ib., Edward VI. against hearing mass, 106 note 2 - examination of papists in the, -of 25th Henry VIII. against impor128-security of the. 231 -power of, tation of foreign books, 93, note 2_-of 234 - instances of its extended author-supremacy and uniformity, 1st of Elizity, 43 informations in the, against abeth, 120-of 5th Elizabeth against London, ii. 34-jurisdiction of the, fantastical prophecies, 124, note 1 - for 86-39- caution of, in cases of inheri-the assurance of the queen’s power, 124 tance, 37-offences belonging to. i. - -opposed by Mr. Atkinson and lord mode of process in the, 39-punish- Montagu, ib.- arguments for it, 125,

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INDEX. 431 STATUTE. SUFFOLK. note 1-of 8th of Elizabeth on behalf Stewart (Miss), her marriage with the of the bishops, 126 and note 3-of 28th duke of Richmond, ii. 346 and note 1. and 35th Henry VIII. on the succes-Stone (primate of Ireland), his great share sion, 180-of 13th of Elizabeth on in the government of Ireland in the altering the succession, 13 of 13th reign of George II., iii. 384. Elizabeth against papists, 144, 155, and Storie (John), his committal by authornote - of 23d ditto against recusancy, ity of parliament, i. 270. 151-of 25th Edward III. against Stow (John), his library seized, i. 239. treason, 152 Elizabeth, command-Strafford (Thomas Wentworth, earl of), ing papists to depart the kingdom, 159 character of, ii. 47 and note 1-made - of 27th Elizabeth for her security, president of the council of the north, 163 of 33d Elizabeth restricting the 48-lord-deputy of Ireland, 49-his residence of popish recusants, 168-of correspondence with archbishop Laud, 13th Elizabeth for subscribing church 50-53, and notes -his sentiments and articles, 195 - of 23d Elizabeth against practice on ship-money, 56-advice to seditious books of seminary priests, Charles I. against war with Spain, ib. wrested against the puritan libels, 208, - his sentiments and use of parlia216 -of 35th Elizabeth for imprisoning ments, 57, 58-summary of his connon-conformists, 215-of 1st of Eliza-duct, &c., ib., 59, and note 1-his imbeth, restraining the grant of ecclesias-peachment, 105 and note 1  its justice tical lands, 225-of 14th Elizabeth on discussed, 106-113
and notes - his able recusants, 244, note-of Confirmatio government of Ireland, iii. 867, note 2, Chartarurn and Magna Charta, 311-368 and note 1 -procures six subsiof 45th Edward III. against new cus-dies, 368. toms, 314, 315, 316 of 34th Henry Strangers amenable to law wherever they VIII.

for court of council of Wales, dwell, i. 165. 824, note 1-of 34th of Henry VIII. on Strickland (Mr.). his attack on the abuses making laws for Wales, 334-of 2d of the church ofEngland, i. 193-taken and 3d Edward VI. for preserving from his seat in the house of commons, Lent, 389, note 2-of 5th, 27th, and 253-restored to it, ib. 85th of Elizabeth, for increase of the Strongbow (earl), his acquisitions in Irefishery, ib.- of 1st and 3d Charles I. land, iii. 333, 334 his possessions difor observance of Sunday, 391, note 3 vided among his five sisters, 335. -of 1st Edward II., De Militibus, ii. Stuart (Arabella), her title to the English 17, note 1-of 4th Edward III. for crown, i. 285 and note 1-her unhapholding parliaments. 97, 98, and note 1 py life and persecutions, 344, 345, and -of 16th Charles I. for abolishing note 2. court of star-chamber, &c., 100
and Stuart (house of), want of legal title to notes 1, 2-for determining forests, re-the crown, i. 286, 287, and note 1. straining purveyance, amending the Stuart, Henry VII., Henry VIII., Elizastannary courts, levying troops, 101, beth, and the four kings of the house 102 -of 1st and 25th of Edward III., of, mastermovers of their own policy, and 4th Henry IV., amending military iii. 281. service, 129 and 130-of Winchester, Stuart papers in the hands of George IV., for defence of the nation, 131-of 1st iii. 244, note 1. James I. on furnishing soldiers, 132, Stubbe, his pamphlet against Elizabeth’s note 3-of Edward IV., constructive marriage with the duke of Anjou, i. interpretation of, by chief-justice Eyre, 233, 234. iii. 163-of leasing-makingin Scotland, Subsidies, popular aversion to, i. 28310 - English, question on their valid-grant of, in 1588, 260-in 1593-1601, ity in Ireland, 386. 262, 263-less frequent in Scotland Statute of Kilkenny, its influence on the than in England, iii. 297.

government of Ireland, iii. 341, note 2. Subsidy, value of, examined, i.

363, note 2. Statutes, Irish, account of the, iii. 340-Succession, difficulties in regard to the English, extended to Ireland, 345 and created by Henry’s two divorces, i. 4 note l. - princesses Mary and Elizabeth, nomStawell, a gentleman of Devonshire, reinated in the entail after the king’s fuses compliance to the speaker’s war-male issue; crown devised to the heirs rant, ii. 421. of Mary, duchess of Suffolk, to the Steele (sir Richard), expelled the house exclusion of the royal family of Scotof commons for writing a pamphlet land, ib. reflecting on the ministry, iii. 258. Suffolk (Frances Brandon, duchess of), Stephens (Rev.

Mr.), justice Powell’s ob-emigrates on account of her religion, i servations in passing sentence on him 113. note 4. fcr a libel on ministers, iii. 164, note a Suffolk (family of Brandon, duke of),

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432 INDEX. SUFFOLK. TITES. succession of the crown settled in, i. Sussex (Thomas Ratcliffe, earl of), his 131,136, 283 - title of, nearly defeated letter concerning the imprisonment of by Elizlbeth, 135 - descendants of, Mary Stuart, i. 139, note 1. living at the death of Elizabeth. 288, Sweden (king of), leagues with the pre290 present representatives of their tender, iii. 233. claim, 291. note. Swift (Dr. Jonathan), employed by govSuffolk (Edmund de la Pole, earl of), con-ernment to retaliate on libellers, iii. spires against Henry VII., attainted, 165. flies to the Netherlands, given up by the archduke Philip on condition of Talbot (lord chancellor), bill to prevent safety: Ienry VIII. causes him to be smuggling strongly opposed by him, executed, i. 41. iii. 79 - his arguments against it, Suffolk (county of), assists in placing ib. Mary on the throne, and suflers Tanistry, law of, defined, iii. 328-strong greatly from her persecution, i. 113 inducement of the native Irish to preand note 2. serve the, 338-custom of, determined Sully (due de), wears mourning for Eliz-to be void, 360. abeth at the court of James I., i. 293, Tax upon property in the reign of Henry note 2. VIII., mode of its assessment, i. 34 Sunday, differences on the observance of, note 1-discontents excited by it, i. 389 and note 1 - statutes for, 391 and - opposed tumultuously, and finally note a. abandoned, ib. Sunderland (Robert Spencer, earl of), Taxation under Henry VIII., mode of. i. early mention of his inclination to 34-arbitrary, under the two Henrys, adopt the catholic religion, ii. 368-40. his intentions, iii. 64, note 2-enters Taxation, arbitrary, restrained by the ilto secret negotiation with the prince Petition of Right i. 384; ii. 21. f Orange, 74-reproached for his con-Taxations not attempted by Elizabeth, i. duct in the peerage bill, 230. 244, note 1. S:-pply to the crown, ancient mode of, Taxes not to be levied in England with-.ii. 34-the commons are the granting out consent of parliament, i. 311and the lords the consenting power, ib. larger in amount in the reign of - present practice of, 36. Charles II. than at any former period, Supplies, origin of the estimates of, ii. ii. 336. 340-remarks on the appropriation of, Temple (sir John), his relation of the iii. 117, 118. number of protestants massacred in Supremacy of the church given to Henry Ireland, iii. 372, note 2 -his History VIII., i. 78-difficulty of repealing of the Irish Rebellion unjustly deprethe act of, under queen-Mary, 114-ciated, 374 and note. restored to the crown under Elizabeth, Temple (sir Wiliam), his views of gov119-character and power of the act ernment, ii. 361, note 2-new council of, 120-oath of, 121, note I - penalty formed by, 415, note l, 416, and notes for refusing, ib. -lord Burleigh’s me-1 2. morial on the oath of, 157 - act of, Tenancy fron year to year, of very relinks the church with the temporal cent introduction, iii. 48. constitution, 175-the sovereign’s, re-Tenison, archbishop, extract from his jected by Cartwright and the puritans, speech on the union, iii. 324, note 1. 189-acknowledged by some of the Test act, dissenters give their support to puritans, 211 -executions for denial the, ii. 373, notes I, -, 375 and note 1. of, 216, note 3-act of resistance of Testo:ntctt, New, 1526, translated into the Irish to it, iii. 349-oath of, cath-English, and proscribed, i. 94. olics murmur at the, 359, note 2-im- Tholmpson (Richard), taken into custo. posed on the commons by the 5th of dy for preaching virulent sermons at Elizabeth, nevei adopted by the Irish Bristol, and impeached upon strange parliament, 382-resolution of corn-charges, ii. 420. mons of Ireland to exclude those who Thorough, a phrase used by archbishop would not take the oath of the, 383. Laud and the earl of Strafford to exSurrey (Thomas Howard. earl of), futile press their system of government, ii. charges against. of the crime of quar-50
et seq. tering the royal aiwils, i. 45-ignromia- Thurloe, John, letter from to Henry ious behavior of his ftther, ib. Cromwell, ii. 258, note 1.

Sussex, (Henry Ratcliffe, earl of), writes Tindal (William), his translations of the to the burgesses of Yarmouth and Scriptures, i. 94 and note 1. others, requesting them to vote for the Tithes, subsisted during the common person he should name, i. 59. wealth, ii. 301.

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INDEX. 433 TOLERATION. ULSTER. Toleration, ancient avowal of the prin-liam III., 157 - prosecutions for, ciple of, i. 130, note 2-religious, iii. under Charles II., disgraceful to gov167, 168, note 1-act, a measure of ernment. 158-Scots law of, its severreligious liberty, 169-no part of the, ity and odium, 310, 311. extended to papists or such as deny Treasury, reduced state of the, in 1639, the Trinity, ib.- anti-toleration stat-ii. 86 88 and notes. utes repealed by the whigs, 241-Treaty begun at Oxford, ii. 154 prenatural right of the Irish, 359. tended, signed with France, secret beTom Tell-truth, a libel against James I., tween Charles II. and Louis XIV., 387 i. 362, note 1. -of peace broken off and renewed by Tonnage and poundage, granted to Henry the tory government, iii. 207. VIII. by his first parliament, mistaken Treaties of partition, two, iii. 144-imassertion of Hume and Lingard respect-peachment of four lords on account ing it, i. 33, note 1-the king’s right of the, 145. to, disputed, 384-declaration in the Treating at elections, origin of, iii.

290, act for, 385. note s. Topcliffe ( - ), his persecution of Treby (chief-justice), his conduct in the papists under Elizabeth, i. 149, note 2. case of Anderton, iii. 158. Topham ( sergeantat-arms ), actions Trial by jury, its ancient establishment, brought against him for false impris-i. 21, note 1. onment, iii. 271. Trials for treason, &c., unjustly conTorture, use of, denied by the judges, ducted under Elizabeth, i.

232-of ii. 15-instances of, in England, 16, Russell and Sidney, ii. 431.

note 1 - strictures on Mr. Jardine’s Triennial bill, its constitution and priviviews of this subject, ib. leges, ii. 97, 98. and note 1 - act, repeal Tortures, used under the house of Tudor, of, 315-and of the act for its repeal, i. 154 and note 1-under Elizabeth, 816. denied by Lord Burleigh, 156. Trinity, denial of the, or of the inspira. Tory principles of the clergy, ii. 436-tion of any book of the Bible, made firmly adhere to the established relig-felony, ii. 196, note. ion, ib. -party, their rage against the Triple alliance, public satisfaction at the, queen and lord Oxford for retaining ii. 357. whigs, iii. 223, note 1-ministry an-Trust estates, view of the laws relating noyed by the vivacity of the press, to, i. 338, 339. 286. Tudor, house of, difficulty experienced Tories, their inconsistency, iii. 198 ill by, in raising supplies, i. 18-one of received at court, and excluded from the most important constitutional prooffice, 203. visions of, 53-strengthened by Mary, Toryism, its real character, ii. 418-car- ib dinal maxim of, ib. Tudors, military levies under the, ii. 132, Tower of London, historical associations 133. connected with the, i. 154. Tunstal (Cuthbert), bishop of Durham, Towns, chartered, their jurisdiction, i. liberally entertained by Parker, i. 126, 23. note 1. Tracts, political, extraordinary number Tutchin (John), law laid down by Holt published from the meeting of the long in the case of, iii. 164. parliament, iii. 10. Tyrconnel (earl of), charged with conTrade, foreign, proclamations,of Elizabeth spiracy, and attainted of treason, iii. restricting, i. 238 - the king’s preroga-362 -
lord-lieutenant of Ireland in tive of restraining, 311. note 2 - proj-1687, his secret overtures with the ect for a council of, iii. 143. French agents, 379. Transubstantiation, persecutions con-Tyrone (earl of), charged with conspiracy cerning, i. 93, 103-metaphysical ex-and attainted of treason, iii. 362. amination of, 100, 101-modern Rom-Tyrrel (Anthony), an informer against ish doctrine of, ib., note. papists, i.

160, note 1. Treason, consideration of the law of, as applied to the papists under Elizabeth, Udal ( - ), tried and imprisoned for a i. 170, note 1  trials for, unjustly con-libel on the bishops, i. 209 and note 1, ducted under Elizabeth, 232 - perver-233. sions of the law of, under James I., Ulster, the most enlightened part of Ire838, note 2 - law of, iii. 148 - statute land, iii. 362 - the colonization of, first of Edward III., ib.- its constructive carried into effect by sir Arthur Chiinterpretation and material omission, chester in the reign of James I., ib.149, 150-various strained construc-linen manufacture first established by tions of the, 150, 151-statute of Wil-Strafford, 370, 371. VOL. II. 28

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434 INDEX. UNDERTAKERS. WENTWORTH. Undertakers, agents between the king diction, i. 324 and note 1 - court and and the parliament so called, i.

334, council abolished, ii. 101-right of 849, note 3. election extended to, by Henry VIII., Uniformity, act of, passed under Eliza-iii. 38. beth, i. 120 and note -its character Waller’s plot, ii. 156 - oath taken by both and extent, 121 -links the church houses in consequence of, ib. with the temporal constitution, 175. Wallingford House, cabal of, form a coUnion of the two crowns, sovereign and alition with the republicans, ii. 260court withdrawl by, from Scotland, oblige Richard Cromwell to dissolve his iii.

322 general observations on the parliament, 261. same, ib.-325. Walpole (sir Robert), reconciles the Universities, foreign, bribed on the sub-church to the royal family, iii. 241ject of Ienry VIII.‘s divorce, i. 74, remarks on his administration, 246note 1-difficulty of procuring the character of the opposition to him, 249judgment of Oxford and Cambridge the successors of, did not carry reform against the marriage, 79. to the extent they previously aimed at, Usher (James), archbishop of Armagh, 255, 256-and Pelham, condemn the his scheme for a moderate episcopacy, excessive partiality of their masters for ii. 116 and note 2-model of church their Hanoverian dominions, 284, 285, government, 305 and notes 1, 2-and note 1-his prudent administrascheme of church government not intion, 286. convenient or impracticable, 320. Walsingham (sir Francis), deceived by Utrecht, treaty of, arguments for and Charles IX., i. 144-his advice against against the, iii. 208-213- negotiations Mary queen of Scots, 146-fidelity of mismanaged, 213-advantages lost by his spies upon her, 162-his enmity to the, ib. -misconduct of lords Boling-her, 165 and note 1-his moderation broke and Oxford ii the management and protection towards the puritans, of it, ib., note 1. 197-his disinterested liberality, 225 Uxbridge, negotiations at, ii. 169, 170, -his letter in defence of Elizabeth’s and note 2-rupture of the, 174. government. 229
and note 1. Walton (Dr. Brian), ejected by the coveVagabonds, act of state against, under nant, ii. 164. Elizabeth, i. 242. War with Holland, infamy of the, ii. 370 Vane (sir Henry), his message to the and note 2-between William III. and commons, 1640, ii. 92-and general Louis XIV., its ill success and exLambert, excepted from act of indcem-penses, iii. 132, 133-of the succesnity, 310 injustice of his condemna-sion, its object, ib., 136. tion, 311, 312, and note 2-execution Wards, extraordinary liveries taken for, and character, 312. 313-his commu-i. 30. nication to the lords-justices relating Warham (William), archbishop of Canto the connection between Spain and terbury. his letter to Wolsey, on the the disaffected Irish. iii. 371, note 2. grants, &c., of 1525, i. 34, note.

Vaughan (chief-justice), his argument Warrant of committal, form and power with regard to tlae power of juries, of, debated, i. 376, 379; ii. 11.

iii. 16, 17. Warwick (Edward Plantagenet, earl of), Venner, insurrection of in 1660, ii. 300. his long captivity, attempt to escape Verdict, general, question of the right of with Perkin Warbeck, his trial for juries to return a, discussed, iii. 16, 17. conspiracy, induced to confess himself Vestments of priests retained in England, guilty in the hope of pardon, his exei. 112 dislike of the German reform-cution, and the probable motive for it, ers to, ib. i. 40-(John Dudley, earl of), a conVintners’ company fined by the star-cealed papist, 106, note. chamber, ii. 41, 42, and note 2. Wenlock, the first charter for returning Visitations of monasteries, character and members to parliament, iii. 47.

truth of, i. 84. Wentworth (Paul), his discussion of the Vote of parliament, to prevent the meet-church authority with archbishop ing of caballing officers, ii. 260 and Parker, i. 195-his bold motion on a note 1-the parliament dissolved in command of Elizabeth, 251 -(Peter), consequence, 261 and note 1. his motion on the succession, 255Vowell’s Treatise on the Order of Parliahis bold defence of the privileges of ment, extract from, iii. 50, note 1. parliament against Elizabeth, ib. -
examined concerning it, 256-committed Waldegrave (sir Edward), and his lady to the Tower, ib. - questions of, on the imprisoned for hearing mass, i. 122. privileges, &c., of parliament, 257Wales, court of the council of, its juris-again committed to the Tower. ib.

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INDEX. 435 WESTBURY. WITHENS. Westbury, borough of, fined for bribery, William the Conqueror, capacity of his i. 266. descendants to the seventeenth cenWestminster, ancient courts of law held tury described, iii. 281. at, i. 21-abbey, preserved from de-William the Lion, statutes ascribed to struction in the reformation under him, iii. 293. Edward VI., 105 - hall, tumult in, on William I 1. receives the crown conjointly demand of a loan by Charles I., 374 and with his wife, iii. 100-discontent with note 2. his governmeent. 109-his charactel Westmoreland (MIildmay Fane, earl of), and errors, 111 his government in his forest amerciament, ii. 18. danger, 112-his dissatisfaction, 119Whalley (abbey of), Dr. Whitaker’s his mlagnainious and public-spirited scheme for distributing its revenues, ambition, 120-dissolves the conveni. 91, note 1. tion parliamnent, and gives his confiWhig and tory, first heard of in the year deuce to the tories, 122, note 2, 123 and 1679, ii. 415-their first meeti g, 418 note 1  scheme for his assassination, -necessity of accurately understand-129 and note 2-his magnanimous coning their detinition, iii. 194-their disduct, 132-nunjustly accused of neglecttinctive principles, ih., 195-changes ing the navy, 135, 133, and note 1effected in them by circumstances, ib., skill and discipline acquired by the 196. troops under his colmmand, 135Whiggism. genuine, one of the tests of, aware of the intentions of Louis XIV. iii. 146. on the Spanish dominions, 137 - Whig party, justified in their distrust of 700,0001. granted him during life, 138 Charles II., ii. 426. - leaves a sealed order to keep up the Whigs, remarkable triumph of the, iii. army, 139-obliged to reduce his army, 96, 97 - their influence in the councils and send home his Dutch guards, ib. - of William III., 112-oppose a general his conduct censurable with regard to amnesty, 113-bold measure of the, the Irish forfeitures, 141, note 1 -un221 -come into power, 222.

popularity of his administration, 143 Whiston, extract from his ilenoirs, iii. - his conduct with respect to the two 192, note 1. treaties of partition, 145-his supeWhitaker (Dr. ThomasDunham), his plan riority over the greatest men of the for distributing the revenues of the age, 146-improvements in the Engabbey of Whalley, i. 91, note 1. ish coinstitution under him, 147-his Whitbread, a jesuit, his trial, ii. 403, 404. statute of treason, 148 - hatred of the White (John, bishop of Winchester), tories to, 174-distinction of the cabspeaks against the protestants in his inet from the privy council during his funeral sermon for queen Mazy, i. 119, reign, 180 - reservedness of his disponote.

sition, 183-his partiality to Bentinck Whitelock (sir James), cited before the and Keppel not consistent with the star-chamber, i. 343- (Bulstrode), good sense and dignity of his characpalliation of his father’s pliancy, ii. ter, 184 influences members of par11, note l-curious anecdote recorded liament by bribes, 185 -refuses to pass by, 273. a bill for rendering the judges indeWhitgift (John, archbishop of Canter-pendent, 189 - truly his own minister, bury), orders given to, concerning pa-281-never popular in Scotland, 321 pists in Denbigh, i. 148 -his allowance -the only consistent friend of toleraof torture, 154, note I - his answer to tion, 321 and note 2. Cartwright, 202 and note I1-rigor of Williams (-), his prediction of king his ecclesiastical government, 203 and James’s death, i. 338. note 2-(Dr. note 1 -ex offcio oath tendered by, 205 John, bishop of Lincoln), suspicion of -his intercession for Udal, 209-his corruption in, 381, note -fined by censure of lawyers, 214 and note 4-his the star-chamber, ii. 42-made lordbigoted sway over the press, 240, note 1
keeper, 46 - suspected of popish prin-his exclamation at Hampton Court, ciples, 73, note 2. iii. 307. Wills, fees of the clergy on the probates Wicliffe (John), effect of his doctrines in of, limited, i. 77. England, i. 70. Winchester, statutes of, on defence of the Wildman (major), unites the republicans nation, ii. 131. and royalists against the power of Crom-Wines, duties imposed on their importawell. ii. 240. tion, i. 313, note 1.

Wilford (sir Thomas), Elizabeth’s illegal lWisbech castle, factions of the prisoners commission of martial law to, i. 242. in, i. 171, note 1.

Wilkins (bishop), opposes the act for sup-Withens (sir Francis), expelled the house pressing conventicles, ii. 369. of commons, ii. 420

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436 INDEX. WOAD. ZWINGLE. Woad, proclamation of Elizabeth, pro-Yelverton (Mr.), his defence of the priv hibiting its culture, i. 237 and note 1.

ileges of parliament, i. 253. Wolsey (cardinal Thomas), his motion for Yeomanry of England, under the Plana supply of 800,00)1. to be raised by a tagenets, described, i. 21. tax on lands and goods, i. 32-opposed Yeomen of.the guard, establishment of by the commons, ib. -circumstantial the, ii. 131. account of this transaction, ib. and York, council of. summoned, ii. 94, note 2, note 2 -his arbitrary mode of raising 95, note 2. money without the intervention of par-York (James, duke of), protests against liament, 33-letters to, concerning, a clause in act of uniformity, ii.

82584, note 2-obloquy incurred by these suspected of being a catholic before the measures, 35-estimate of his charac-Restoration, 328 and note 1-his marter, 36-articles against him never riage with lady Anne Hyde, 344
and intended to be proceeded upon by the note 2, 345 - converted to the Romish king, 37, note 1-cause of the duke of faith, 362-particulars relating to his Buckingham’s execution, 41 and note 1 conversion, ib. and note 1-always -augments the authority of the court strenuous against schemes of compreof star-chamber, 64-rigid in restrain-hension, 368-obliged to retire from ing the turbulence of the nobility, &c., the office of lord-admiral, 374 and note 1 66, note 1-Luther’s attack on, 72, - dangerous enemy of the constitution, note 3-a delegate of Clement VII.

on 377 - his accession to the throne viewed Henry VIII.‘s divorce, 74

increases with great apprehension, 405 -engaged the fees of the clergy on wills. 77, note l in a scheme of general conversion, 408  his reformation and suppression of -resolved to excite a civil war rather the monastic orders, 82 - did not per-than yield to the exclusion, 411 - plan secute, but proscribed heretic writings, for banishing him for life, 414 and note 2 94. -his unpopularity among the middling Wool, &c., ancient unjust tolls on, i. 314, classes, 419 - his tyranny in Scotland, 315, note 4. iii. 313.

314. Worcester, victory of, its consequences to Yorke (Philip, second earl of Hardwicke), the future power of Cromwell, ii. 229. his account of the tories in 1745, iii. Wotton (sir Henry), his palliation of im-244, note 2. positions, i. 334, note 3. Yorkshire, levy of ship-money refused in, Wright (-), his case of conscience and ii. 88. confinement, i. 150, note 2. Wright (Mr. Thomas), notice of his edi-Zeal, religious, in Scotland, its furious tion of “Letters relating to the Sup-effects, iii. 299.

pression of Monasteries,” i. 83, note 2. Zwingle (Ulric), his belief concerning the Wyatt (sir Thomas), insurrection of, i. Lord’s Supper nearly fatal to the Ref117, note 1. ormation. i. 101. THE END.

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