Constitutional History of England, Henry VII to George II. Volume 3 of 3

by Henry Hallam

FOOTNOTES:

[1] It was said in 18 Car. II. (1666) that "the king by the common law hath a general prerogative over the printing press; so that none ought to print a book for public use without his license." This seems, however, to have been in the argument of counsel; but the court held that a patent to print law-books exclusively was no monopoly. Carter's Reports, 89. "Matters of state and things that concern the government," it is said in another case, "were never left to any man's liberty to print that would." 1 Mod. Reps. 258. Kennet informs us that several complaints having been made, of Lilly's Grammar, the use of which had been prescribed by the royal ecclesiastical supremacy, it was thought proper in 1664 that a new public form of grammar should be drawn up and approved in convocation, to be enjoined by the royal authority. One was accordingly brought in by Bishop Pearson, but the matter dropped. Life of Charles II. 274.

[2] We find an order of council, June 7, 1660, that the stationers' company do seize and deliver to the secretary of state all copies of Buchanan's History of Scotland, and De Jure Regni apud Scotos, "which are very pernicious to monarchy, and injurious to his majesty's blessed progenitors." Kennet's Register, 176. This was beginning early.

[3] Commons' Journals, July 29, 1661.

[4] 14 Car. II. c. 33.

[5] State Trials, vii. 929.

[6] This declaration of the judges is recorded in the following passage of the London Gazette, May 5, 1680: "This day the judges made their report to his majesty in council, in pursuance of an order of this board, by which they unanimously declare that his majesty may by law prohibit the printing and publishing of all news-books and pamphlets of news whatsoever not licensed by his majesty's authority, as manifestly tending to the breach of the peace and disturbance of the kingdom. Whereupon his majesty was pleased to direct a proclamation to be prepared for the restraining the printing of news-books and pamphlets of news without leave." Accordingly such a proclamation appears in the Gazette of May 17.

[7] State Trials, vii. 1127; viii. 184, 197. Even North seems to admit that this was a stretch of power. Examen, 564.

[8] State Trials, viii. 163.

[9] It seems that these warrants, though usual, were known to be against the law. State Trials, vii. 949, 956. Possibly they might have been justified under the words of the licensing act, while that was in force; and having been thus introduced, were not laid aside.

[10] Kennet's Charles II. 277.

[11] State Trials, vi. 837.

[12] Ralph, 297; North's Examen, 139; Kennet, 337. Hume of course pretends that this proclamation would have been reckoned legal in former times.

[13] "Sir Hugh Wyndham and others of the grand jury of Somerset were at the last assizes bound over, by Lord Ch. J. Keeling, to appear at the K. B. the first day of this term, to answer a misdemeanour for finding upon a bill of murder, 'billa vera quoad manslaughter,' against the directions of the judge. Upon their appearance they were told by the court, being full, that it was a misdemeanour in them, for they are not to distinguish betwixt murder and manslaughter; for it is only the circumstance of malice which makes the difference, and that may be implied by the law, without any fact at all, and so it lies not in the judgment of a jury, but of the judge; that the intention of their finding indictments is, that there might be no malicious prosecution; and therefore, if the matter of the indictment be not framed of malice, but is verisimilis, though it be not vera, yet it answers their oaths to present it. Twisden said he had known petty juries punished in my lord Chief Justice Hyde's time, for disobeying of the judge's directions in point of law. But, because it was a mistake in their judgments rather than any obstinacy, the court discharged them without any fine or other attendance." Pasch. 19 Car. 2; Keeling; Ch. J. Twisden, Wyndham, Morton, justices; Hargrave MSS. n. 339.

[14] Journals, 16th Oct. 1667.

[15] State Trials, vi. 967.

[16] Vaughan's Reports; State Trials, v. 999.

[17] See Hargraves' judicious observations on the province of juries. State Trials, vi. 1013.

[18] Those who were confined by warrants were forced to buy their liberty of the courtiers; "Which," says Pepys (July 7, 1667), "is a most lamentable thing that we do professedly own that we do these things, not for right and justice' sake, but only to gratify this or that person about the king."

[19] State Trials, vi. 1189.

[20] Commons' Journals. As the titles only of these bills are entered in the Journals, their purport cannot be stated with absolute certainty. They might, however, I suppose, be found in some of the offices.

[21] Parl. Hist. 661. It was opposed by the court.

[22] In this session (Feb. 14) a committee was appointed to inspect the laws, and consider how the king may commit any subject by his immediate warrant, as the law now stands, and report the same to the house, and also how the law now stands touching commitments of persons by the council-table. Ralph supposes (p. 255) that this gave rise to the habeas corpus act, which is certainly not the case. The statute 16 Car. I, c. 10, seems to recognise the legality of commitments by the king's special warrant, or by the privy council, or some, at least, of its members singly; and I do not know whether this, with long usage, is not sufficient to support the controverted authority of the secretary of state. As to the privy council, it is not doubted, I believe, that they may commit. But it has been held, even in the worst of times, that a warrant of commitment under the king's own hand, without seal, or the hand of any secretary, or officer of state, or justice, is bad. 2 Jac. II. B. R. 2 Shower, 484.

[23] In the Parliamentary History, 845, we find a debate on the petition of one Harrington to the Commons in 1677, who had been committed to close custody by the council. But as his demeanour was alleged to have been disrespectful, and the right of the council to commit was not disputed, and especially as he seems to have been at liberty when the debate took place, no proceedings ensued; though the commitment had not been altogether regular. Ralph (p. 314) comments more severely on the behaviour of the house than was necessary.

[24] 31 Car. II. c. 2.

[25] The puisne judges of the common pleas granted a habeas corpus, against the opinion of Chief-Justice Vaughan, who denied the court to have that power. Carter's Reports, 221.

[26] The court of King's Bench directed a habeas corpus to the governor of Jersey, to bring up the body of Overton, a well-known officer of the commonwealth, who had been confined there several years. Siderfin's Reports, 386. This was in 1668, after the fall of Clarendon, when a less despotic system was introduced.

[27] See the Lords' questions and answers of the judges in Parl. Hist. xv. 898; or Bacon's Abridgment, tit. Habeas Corpus; also Wilmot's Judgments, 81. This arose out of a case of impressment, where the expeditious remedy of habeas corpus is eminently necessary.

[28] 56 G. III. c. 100.

[29] It was ordered 21 Jan. 1549, that the eldest son of the Earl of Bedford should continue in the house after his father had succeeded to the peerage. And, 9th Feb. 1575, that his son should do so, "according to the precedent in the like case of the now earl his father." It is worthy of notice that this determination, which, at the time, seems to have been thought doubtful, though very unreasonably (Journals, 10th Feb.), but which has had an influence which no one can fail to acknowledge, in binding together the two branches of the legislature, and in keeping alive the sympathy for public and popular rights in the English nobility (that sensus communis, which the poet thought so rare in high rank) is first recorded, and that twice over, in behalf of a family, in whom the love of constitutional freedom has become hereditary, and who may be justly said to have deserved, like the Valerii at Rome, the surname of Publicolæ.

[30] The form of appointing receivers and tryers of petitions, though intermitted during the reign of William III. was revived afterwards, and finally not discontinued without a debate in the House of Lords, and a division, in 1740. Parl. Hist. xi. 1013.

[31] Hargrave, p. 60. The proofs are in the Lords' Journals.

[32] They were very rare after the accession of Henry V.; but one occurs in 10th Hen. VI. 1432, with which Hale's list concludes. Hargrave's Preface to Hale, p. 7. This editor justly observes, that the incomplete state of the votes and early journals renders the negative proof inconclusive; though we may be fully warranted in asserting that from Henry V. to James I. there was very little exercise of judicial power in parliament, either civilly or criminally.

[33] 27th Eliz. c. 8.

[34] Lords' Journals, May 18, 1660.

[35] Commons' Journals, May 22.

[36] Lords' Journals, June 4, 6, 14, 20, 22 et alibi sæpe. "Upon information given that some person in the late times had carried away goods from the house of the Earl of Northampton, leave was given to the said earl, by his servants and agents, to make diligent and narrow search in the dwelling-houses of certain persons, and to break open any door or trunk that shall not be opened in obedience to the order." June 26. The like order was made next day for the Marquis of Winchester, the Earls of Derby and Newport, etc. A still more extraordinary vote was passed August 16. Lord Mohun having complained of one Keigwin, and his attorney Danby, for suing him by common process in Michaelmas term, 1651, in breach of privilege of peerage, the house voted that he should have damages: nothing could be more scandalously unjust, and against the spirit of the bill of indemnity. Three presbyterian peer protested.

[37] They resolved, in the case of the Earl of Pembroke, Jan. 30, 1678, that the single testimony of a commoner is not sufficient against a peer.

[38] Journals, Aug. 2 and 15, 1660.

[39] Id. July 29, 1661.

[40] Id. Oct. 31, 1665.

[41] For the whole of this business, which is erased from the journals of both houses, see State Trials, v. 711; Parl. Hist. iv. 431, 443; Hatsell's Precedents, iii. 336; and Hargrave's Preface to Hale's Jurisdiction of the Lords, 101.

[42] Hale says, "I could never get to any precedent of greater antiquity than 3 Car. I. nay scarce before 16 Car. I. of any such proceeding in the Lords' house." C. 33, and see Hargrave's Preface, 53.

[43] Id. c. 31.

[44] It was ordered in a petition of Robert Roberts, Esq., that directions be given to the lord chancellor that he proceed to make a speedy decree in the court of chancery, according to equity and justice, notwithstanding there be not any precedent in the case. Against this Lords Mohun and Lincoln severally protested; the latter very sensibly observing, that whereas it hath been the prudence and care of former parliaments to set limits and bounds to the jurisdiction of chancery, now this order of directions, which implies a command, opens a gap to set up an arbitrary power in the chancery, which is hereby countenanced by the House of Lords to act, not according to the accustomed rules or former precedents of that court, but according to his own will. Lords' Journals, 29th Nov. 1664.

[45] It was thrown out against them by the Commons in their angry conferences about the business of Ashby and White, in 1704, but not with any serious intention of opposition.

[46] C. J. May 30.

[47] Id. Nov. 19. Several divisions took place in the course of this business, and some rather close; the court endeavouring to allay the fire. The vote to take Sergeant Pemberton into custody for appearing as counsel at the Lords' bar was only carried by 154 to 146, on June 1.

[48] Lords' Journals, Nov. 20.

[49] Lords' and Commons' Journals, May and November 1675; Parl. Hist. 721, 791; State Trials, vi. 1121; Hargrave's Preface to Hale, 135; and Hale's Treatise, c. 33.

It may be observed, that the Lords learned a little caution in this affair. An appeal of one Cottington from the court of delegates to their house was rejected, by a vote that it did not properly belong to them, Shaftesbury alone dissentient. June 17, 1678. Yet they had asserted their right to receive appeals from inferior courts, that there might be no failure of justice, in terms large enough to embrace the ecclesiastical jurisdiction. May 6, 1675. And it is said that they actually had done so in 1628. Hargrave, 53.

[50] Parl. Hist. ii. 148.

[51] Id. 200.

[52] Id. 300 (43 Edw. 3).

[53] Rot. Parl. iii. 611; View of Middle Ages, ii. 310.

[54] 14 E. 3, stat. 1, c. 21. This statute is remarkable for a promise of the Lords not to assent in future to any charge beyond the old custom, without assent of the Commons in full parliament. Stat. 2, same year; the king promises to lay on no charge but by assent of the Lords and Commons. 18 E. 3, stat. 2, c. 1; the Commons grant two-fifteenths of the commonalty, and two-tenths of the cities and boroughs. "Et en cas que notre signeur le roi passe la mer, de paier a mesmes les tems les quinzisme et disme del second an, et nemy en autre maniere. Issint que les deniers de ce levez soient despendus, en les besoignes a eux monstez a cest parlement, par avis des grauntz a ce assignez, et que les aides de la Trent soient mys en defense de north." This is a remarkable precedent for the usage of appropriation, which had escaped me, though I have elsewhere quoted that in 5 Rich. 2, stat. 2, c. 2 and 3. In two or three instances, we find grants of tenths and fifteenths in the statutes, without any other matter, as 14 E. 3, stat. 1, c. 20; 27 E. 3, stat. 1, c. 4.

[55] 7 H. 7, c. 11; 12 H. 7, c. 12.

[56] I find only one exception, 5 H. 8, c. 17, which was in the now common form: Be it enacted by the king our sovereign lord, and by the assent, etc.

[57] In 37 H. 8, c. 25, both Lords and Commons are said to grant, and they pray that their grant "may be ratified and confirmed by his majesty's royal assent, so to be enacted and authorised by virtue of this present parliament as in such cases heretofore has been accustomed."

[58] Commons' Journals, 24, 29 July; Lords' Journals, 30 July.

[59] They expressed this with strange latitude in a resolution some years after, that all aids and supplies to his majesty in parliament are the sole gift of the Commons. Parl. Hist. 1005. As they did not mean to deny that the Lords must concur in the bill, much less that they must pay their quota, this language seems indefensible.

[60] Lords' and Commons' Journals, April 17th and 22nd, 1679; Parl. Hist. iv. 480; Hatsell's Precedents, iii. 109, 368, 409.

In a pamphlet by Lord Anglesea, if I mistake not, entitled, "Case stated of the Jurisdiction of the House of Lords in point of Impositions," 1696, a vigorous and learned defence of the right of the Lords to make alterations in money-bills, it is admitted that they cannot increase the rates; since that would be to originate a charge on the people, which they cannot do. But it is even said in the year-book (33 H. 6) that if the Commons grant tonnage for four years, and the Lords reduce the terms to two years, they need not send the bill down again. This of course could not be supported in modern times.

[61] Parl. Hist. ii. 563.

[62] The principles laid down by Hatsell are: 1. That in bills of supply, the Lords can make no alteration but to correct verbal mistakes. 2. That in bills, not of absolute supply, yet imposing burthens, as turnpike acts, etc., the Lords cannot alter the quantum of the toll, the persons to manage it, etc.; but in other clauses they may make amendments. 3. That, where a charge may indirectly be thrown on the people by a bill, the Commons object to the Lords making amendments. 4. That the Lords cannot insert pecuniary penalties in a bill, or alter those inserted by the Commons, iii. 137. He seems to boast that the Lords during the last century have very faintly opposed the claim of the Commons. But surely they have sometimes done so in practice, by returning a money-bill, or what the lower house call one, amended; and the Commons have had recourse to the evasion of throwing out such bill and bringing in another with the amendments inserted in it; which does not look very triumphant.

[63] The last instance mentioned by Hatsell is in 1790, when the Lords had amended a bill for regulating Warwick gaol by changing the rate to be imposed from the landowners to the occupiers, iii. 131. I am not at present aware of any subsequent case, but rather suspect that such might be found.

[64] See the case of the Earl of Arundel in parliament in 1626. In one instance the house took notice that a writ of summons had been issued to the Earl of Mulgrave, he being under age, and addressed the king that he would be pleased to be sparing of writs of this nature for the future. 20th Oct. 1667. The king made an excuse that he did not know the earl was much under age, and would be careful for the future. 29th Oct.

[65] Though the proposition in the text is, I believe, generally true, it has occurred to me since, that there are some exceptions in the northern parts of England; and that both Sheffield and Manchester are among them.

[66] It is doubted by Mr. Merewether (arguendo) whether Edward and Mary created so many new boroughs as appears; because the returns under Henry VII. and Henry VIII. are lost. But the motive operated more strongly in the latter reigns. West Looe Case, 80.

[67] 25 Car. 2, c. 9. A bill had passed the Commons in 1624 for the same effect, but failed through the dissolution.

[68] Journals, 26th Feb. and 20th March 1676-7.

[69] Madox Firma, Burgi, p. 270 et post.

[70] The popular character of the elective franchise in early times has been maintained by two writers of considerable research and ability; Mr. Luders, Reports of Election Cases, and Mr. Merewether, in his Sketch of the History of Boroughs and Report of the West Looe Case. The former writer has the following observations, vol. i. p. 99: "The ancient history of boroughs does not confirm the opinion above referred to, which Lord Chief Justice Holt delivered in the case of Ashby v. White; viz. that inhabitants not incorporated cannot send members to parliament but by prescription. For there is good reason to believe that the elections in boroughs were in the beginning of representation popular; yet in the reign of Edward I. there were not perhaps thirty corporations in the kingdom. Who then elected the members of boroughs not incorporated? Plainly, the inhabitants or burghers [according to their tenure or situation]; for at that time every inhabitant of a borough was called a burgess; and Hobart refers to this usage in support of his opinion in the case of Dungannon. The manner in which they exercised this right was the same as that in which the inhabitants of a town, at this day, hold a right of common, or other such privilege, which many possess who are not incorporated." The words in brackets, which are not in the printed edition, are inserted by the author himself in a copy bequeathed to the Inner Temple library. The remainder of Mr. Luders's note, though too long for this place, is very good, and successfully repels the corporate theory.

[71] The following passage from Vowell's treatise, on the order of the parliament, published in 1571, and reprinted in Holingshed's Chronicles of Ireland (vi. 345) seems to indicate that, at least in practice, the election was in the principal or governing body of the corporation. "The sheriff of every county, having received his writ, ought, forthwith, to send his precepts and summons to the mayors, bailiffs, and head officers of every city, town corporate, borough, and such places as have been accustomed to send burgesses within his county, that they do choose and elect among themselves two citizens for every city, and two burgesses for every borough, according to their old custom and usage. And these head officers ought then to assemble themselves, and the aldermen and common council of every city or town; and to make choice among themselves of two able and sufficient men of every city or town, to serve for and in the said parliament."

Now, if these expressions are accurate, it certainly seems that, at this period, the great body of freemen or inhabitants were not partakers in the exercise of their franchise. And the following passage, if the reader will turn to it, wherein Vowell adverts to the form of a county election, is so differently worded in respect to the election by the freeholders at large, that we may fairly put a literal construction upon the former. In point of fact, I have little doubt that elections in boroughs were for the most part very closely managed in the sixteenth century, and probably much earlier. This, however, will not by any means decide the question of right. For we know that in the reigns of Henry IV. and Henry V. returns for the great county of York were made by the proxies of a few peers and a few knights; and there is a still more anomalous case in the reign of Elizabeth, when a Lady Packington sealed the indenture for the county of Worcester. Carew's Hist. of Elections, part ii. p. 282. But no one would pretend that the right of election was in these persons, or supposed by any human being to be so.

The difficulty to be got over by those who defend the modern decisions of committees is this. We know that in the reign of Edward I. more than one hundred boroughs made returns to the writ. If most of these were not incorporated, nor had any aldermen, capital burgesses and so forth, by whom were the elections made? Surely by the freeholders, or by the inhabitants. And if they were so made in the reign of Edward I. how has the franchise been restrained afterwards?

[72] 4 Inst. 48; Glanville, pp. 53, 66. That no private agreement, or by-law of the borough, can restrain the right of election, is laid down in the same book. P. 17.

[73] Glanville's case of Bletchingly, p. 33.

[74] This clause in an act imposing severe penalties on bribery, was inserted by the House of Lords with the insidious design of causing the rejection of the whole bill; if the Commons, as might be expected, should resent such an interference with their privileges. The ministry accordingly endeavoured to excite this sentiment; but those who had introduced the bill very wisely thought it better to sacrifice a point of dignity, rather than lose so important a statute. It was, however, only carried by two voices to agree with the amendment. Parl. Hist. viii. 754.

[75] Fox, Appendix, p. 8.

[76] "The legal method," says Burnet, "was to have made entries, and to have taken bonds for those duties to be paid when the parliament should meet and renew the grant." Mr. Onslow remarks on this, that he should have said, the least illegal and the only justifiable method. To which the Oxford editor subjoins that it was the proposal of Lord-Keeper North, while the other, which was adopted, was suggested by Jefferies. This is a mistake. North's proposal was to collect the duties under the proclamation, but to keep them apart from the other revenues in the exchequer until the next session of parliament. There was surely little difference in point of illegality between this and the course adopted. It was alleged that the merchants, who had paid duty, would be injured by a temporary importation duty free; and certainly it was inconvenient to make the revenue dependent on such a contingency as the demise of the Crown. But this neither justifies the proclamation, nor the disgraceful acquiescence of the next parliament in it.

The king was thanked in several addresses for directing the customs to be levied, particularly in one from the benchers and barristers of the Middle Temple. London Gazette, March 11. This was drawn by Sir Bartholomew Shower, and presented by Sir Humphrey Mackworth. Life of James, vol. ii. p. 17. The former was active as a lawyer in all the worst measures of these two reigns. Yet, after the revolution, they both became tory patriots, and jealous assertors of freedom against the government of William III. Barillon, however, takes notice that this illegal continuance of the revenue produced much discontent. Fox's Appendix, 39; and Rochester told him that North and Halifax would have urged the king to call a parliament, in order to settle the revenue on a lawful basis, if that resolution had not been taken by himself. Id. p. 20. The king thought it necessary to apologise to Barillon for convoking parliament. Id. p. 18; Dalrymple, p. 100.

[77] Dalrymple, p. 142. The king alludes to this possibility of a limited grant with much resentment and threatening, in his speech on opening the session.

[78] Fox, Appendix, p. 93; Lonsdale, p. 5.

[79] For this curious piece of parliamentary inconsistency, see Reresby's Memoirs, p. 113, and Barillon in the Appendix to Fox, p. 95. "Il s'est passé avant hier une chose de grande conséquence dans la chambre basse: il fut proposé le matin que la chambre se mettoit en comité l'après diner pour considérer la harangue du roy sur l'affaire de la religion, et savoir ce qui devoit être entendu par le terme de religion protestante. La résolution fut prise unanimement, et sans contradiction, de faire une adresse au roy pour le prier de faire une proclamation pour l'exécution des loix contre tous les nonconformistes généralement, c'est-à-dire, contre tous ceux qui ne sont pas ouvertement de l'église Anglicane; cela enferme les presbitériens et tous les sectaires, aussi bien que les catholiques Romains. La malice de cette résolution fut aussitôt reconnu du roy d'Angleterre, et de ses ministres; les principaux de la chambre basse furent mandés, et ceux que sa majesté Britannique croit être dans ses intérêts; il leur fit une réprimande sévère de s'être laissés séduire et entraîner à une résolution si dangereuse et si peu admissible. Il leur déclara que, si l'on persistoit à lui faire une pareille adresse, il répondroit à la chambre basse en termes si décisifs et si fermes qu'on ne retourneroit pas à lui faire une pareille adresse. La manière dont sa majesté Britannique s'explique produisit son effet hier matin; et la chambre basse rejeta tout d'une voix ce que avoit été résolu en comité le jour auparavant."

The only man who behaved with distinguished spirit in this wretched parliament was one in whose political life there is little else to praise, Sir Edward Seymour. He opposed the grant of the revenues for life, and spoke strongly against the illegal practices in the elections. Fox, 90, 93.

[80] Fox, Appendix, p. 156. "Provided always, and be it further enacted, that if any peer of this realm, or member of the House of Commons, shall move or propose in either house of parliament the disherison of the rightful and true heir of the Crown, or to alter or change the descent or succession of the Crown in the right line; such offence shall be deemed and adjudged high treason, and every person being indicted and convicted of such treason, shall be proceeded against, and shall suffer and forfeit as in other cases of high treason mentioned in this act."

See what Lord Lonsdale says (p. 8) of this bill, which he, among others, contrived to weaken by provisoes, so that it was given up.

[81] Parl. Hist. 1372. The king's speech had evidently shown that the supply was only demanded for this purpose. The speaker, on presenting the bill for settling the revenue in the former session, claimed it as a merit that they had not inserted any appropriating clauses. Parl. Hist. 1359.

[82] Reresby, p. 110; Barillon, in Fox's Appendix, pp. 93, 127, etc. Le feu roi d'Angleterre et celui-ci m'ont souvent dit, qu'un gouvernement ne peut subsister avec une telle loi. Dalrymple, p. 171.

[83] This opinion has been well supported by Mr. Serjeant Heywood (Vindication of Mr. Fox's History, p. 154). In some few of Barillon's letters to the King of France, he speaks of James's intention établir la religion catholique; but these perhaps might be explained by a far greater number of passages, where he says only établir le libre exercice de la religion catholique, and by the general tenor of his correspondence. But though the primary object was toleration, I have no doubt but that they conceived this was to end in establishment. See what Barillon says (p. 84); though the legal reasoning is false, as might be expected from a foreigner. It must at all events be admitted that the conduct of the king after the formation of the catholic junto in 1686, demonstrates an intention of overthrowing the Anglican establishment.

[84] "Il [le roy] me répondit à ce que je venois de dire, que je connoissois le fond de ses intentions pour l'établissement de la religion catholique; qu'il n'esperoit en venir à bout que par l'assistance de V. M.; que je voyois qu'il venoit de donner des emplois dans ses troupes aux catholiques aussi bien qu'aux protestans; que cette égalité fâchoit beaucoup de gens, mais qu'il n'avoit pas laissé passer une occasion si importante sans s'en prévaloir; qu'il feroit de même à l'égard des choses practicables, et que je voyois plus clair sur cela dans ses desseins que ses propres ministres, s'en étant souvent ouvert avec moi sans reserve."—P. 104. In a second conversation immediately afterwards, the king repeated, "que je connoissois le fond de ses desseins, et que je pouvois répondre que tout son but étoit d'établir la religion catholique; qu'il ne perdroit aucune occasion de la faire ... que peu à peu il va à son but, et que ce qu'il fait presentement emporte nécessairement l'exercice libre de la religion catholique, qui se trouvera établi avant qu'un acte de parlement l'autorise; que je connoissois assez l'Angleterre pour savoir que la possibilité d'avoir des emplois et des charges fera plus de catholiques que la permission de dire des messes publiques; que cependant il s'attendoit que V. M. ne l'abandonneroit pas," etc. P. 106. Sunderland entered on the same subject, saying, "Je ne sais pas si l'on voit en France les choses comme elles sont ici; mais je défie ceux qui les voyent de près de ne pas connoître que le roy mon maître n'a rien dans le cœur si avant que l'envie d'établir la religion catholique; qu'il ne peut même, selon le bon sens et la droite raison, avoir d'autre but; que sans cela il ne sera jamais en sûreté, et sera toujours exposé au zèle indiscret de ceux qui échaufferont les peuples contre la catholicité, tant qu'elle ne sera pas plus pleinement établie; il y a une autre chose certaine, c'est que ce plan là ne peut réussir que par un concert et une liaison étroite avec le roi votre maître; c'est un projet qui ne peut convenir qu'à lui, ni réussir que par lui. Toutes les autres puissances s'y opposeront ouvertement, ou le traverseront sous main. On sait bien que cela ne convient point au Prince d'Orange; mais s'il ne sera pas en état de l'empêcher si on veut se conduire en France comme il est nécessaire, c'est-à-dire ménager l'amitié du roy d'Angleterre, et le contenir dans son projet. Je vois clairement l'appréhension que beaucoup de gens ont d'une liaison avec la France, et les efforts qu'on fait pour l'affoiblir; mais cela ne sera au pouvoir de personne, si on n'en a pas envie ce France; c'est sur quoi il faut que vous vouz expliquiez nettement, que vous fassiez connoître que le roi votre maître veut aider de bonne foi le roi d'Angleterre à établir fermement la religion catholique."

The word plus in the above passage is not in Dalrymple's extract from this letter. Vol. ii. part ii. pp. 174, 187. Yet for omitting this word Serjeant Heywood (not having attended to Dalrymple), censures Mr. Rose as if it had been done purposely. Vindic. of Fox, p. 154. But this is not quite judicious or equitable, since another critic might suggest that it was purposely interpolated. No one of common candour would suspect this of Mr. Fox; but his copyist, I presume, was not infallible. The word plus is evidently incorrect. The catholic religion was not established at all in any possible sense; what room could there be for the comparative? M. Mazure, who has more lately perused the letters of Barillon at Paris, prints the passage without plus. Hist. de la Révol. ii. 36. Certainly the whole conversation here ascribed to Sunderland points at something far beyond the free exercise of the Roman catholic religion.

[85] It is curious to remark that both James and Louis considered the re-establishment of the catholic religion and of the royal authority as closely connected, and parts of one great system. Barillon in Fox, Append. 19, 57; Mazure, i. 346. Mr. Fox maintains (Hist. p. 102) that the great object of the former was absolute power rather than the interests of popery. Doubtless if James had been a protestant, his encroachments on the rights of his subjects would not have been less than they were, though not exactly of the same nature; but the main object of his reign can hardly be denied to have been either the full toleration, or the national establishment of the church of Rome. Mr. Fox's remark must, at all events, be limited to the year 1685.

[86] Fox, Appendix, p. 33; Ralph, 869. The prosecution of Baxter for what was called reflecting on the bishops, is an instance of this. State Trials, ii. 494. Notwithstanding James's affected zeal for toleration, he did not scruple to congratulate Louis on the success of his very different mode of converting heretics. Yet I rather believe him to have been really averse to persecution; though with true Stuart insincerity he chose to flatter his patron. Dalrymple, p. 177. A book by Claude, published in Holland, entitled Plaintes des Protestans cruellement opprimés dans le royaume de France, was ordered to be burned by the hangman, on the complaint of the French ambassador, and the translator and printer to be enquired after and prosecuted. Lond. Gazette, May 8, 1686. Jefferies objected to this in council as unusual; but the king was determined to gratify his most christian brother. Mazure, ii. 122. It is said also that one of the reasons for the disgrace of Lord Halifax was his speaking warmly about the revocation of the edict of Nantes. Id. p. 55. Yet James sometimes blamed this himself, so as to displease Louis. Id. p. 56. In fact, it very much tended to obstruct his own views for the establishment of a religion which had just shown itself in so odious a form. For this reason, though a brief was read in churches for the sufferers, special directions were given that there should be no sermon. It is even said that he took on himself the distribution of the money collected for the refugees, in order to stop the subscription; or at least that his interference had that effect. The enthusiasm for the French protestants was such that single persons subscribed 500 or 1000 pounds; which, relatively to the opulence of the kingdom, almost equals any munificence of this age. Id. p. 123.

[87] It is well known that the House of Commons, in 1685, would not pass the bill for reversing Lord Stafford's attainder, against which a few peers had entered a very spirited protest. Parl. Hist. 1361. Barillon says, this was "parce que dans le préambule il y a des mots insérés qui semblent favoriser la religion catholique; cela seul a retardé la rehabilitation du Comte de Stafford dont tous sont d'accord à l'égard du fond." Fox, App. p. 110. But there was another reason which might have weight. Stafford had been convicted on the evidence, not only of Oates, who had been lately found guilty of perjury, but of several other witnesses, especially Dugdale and Turberville. And these men had been brought forward by the government against Lord Shaftesbury and College, the latter of whom had been hanged on their testimony. The reversal of Lord Stafford's attainder, just as we now think it, would have been a disgrace to these Crown prosecutions; and a conscientious tory would be loth to vote for it.

[88] "In all the disputes relating to that mystery before the civil wars, the church of England protestant writers owned the real presence, and only abstracted from the modus or manner of Christ's body being present in the eucharist, and therefore durst not say but it might be there by transubstantiation as well as by any other way.... It was only of late years that such principles have crept into the church of England; which, having been blown into the parliament house, had raised continual tumults about religion ever since. Those unlearned and fanatical notions were never heard of till Doctor Stillingfleet's late invention of them, by which he exposed himself to the lash, not only of the Roman catholics, but to that of many of the church of England controvertists too." Life of James, ii. 146.

[89] See London Gazettes, 1685, passim: the most remarkable are inserted by Ralph and Kennet. I am sure the addresses which we have witnessed in this age among a neighbouring people are not on the whole more fulsome and disgraceful. Addresses, however, of all descriptions, as we well know, are generally the composition of some zealous individual, whose expressions are not to be taken as entirely those of the subscribers. Still these are sufficient to manifest the general spirit of the times.

The king's popularity at his accession, which all contemporary writers attest, is strongly expressed by Lord Lonsdale. "The great interest he had in his brother, so that all applications to the king seemed to succeed only as he favoured them, and the general opinion of him to be a prince steady above all others to his word, made him at that time the most popular prince that had been known in England for a long time. And from men's attempting to exclude him, they, at this juncture of time, made him their darling; no more was his religion terrible; his magnanimous courage, and the hardships he had undergone, were the discourse of all men. And some reports of a misunderstanding betwixt the French king and him, occasioned originally by the marriage of the Lady Mary to the Prince of Orange, industriously spread abroad to amuse the ignorant, put men in hopes of what they had long wished; that, by a conjunction of Holland and Spain, etc., we might have been able to reduce France to the terms of the Pyrenean treaty, which was now become the terror of Christendom, we never having had a prince for many ages that had so great a reputation for experience and a martial spirit."—P. 3. This last sentence is a truly amusing contrast to the real truth; James having been, in his brother's reign, the most obsequious and unhesitating servant of the French king.

[90] "On voit qu'insensiblement les Catholiques auront les armes à la main; c'est un état bien différent de l'oppression où ils étoient, et dont les protestans zélés recoivent une grande mortification; ils voyent bien que le roy d'Angleterre fera le reste quand il le pourra. La levée des troupes, qui seront bientot complettes, fait juger que le roy d'Angleterre veut être en état de se faire obéir, et de n'être pas gêné par les loix qui se trouveront contraires à ce qu'il veut établir." Barillon in Fox's Appendix, 111. "Il me paroit (he says, June 25), que le roy d'Angleterre a été fort aisé d'avoir une prétexte de lever des troupes, et qu'il croit que l'entreprise de M. le duc de Monmouth ne servira qu'à le rendre plus maître de sons pays." And on July 30: "le projet du roy d'Angleterre est d'abolir entièrement les milices, dont il a reconnu l'inutilité et le danger en cette dernière occasion; et de faire, s'il est possible, que le parlement établisse le fond destiné pour les milices à l'entretien des troupes réglées. Tout cela change entièrement l'état de ce pays ici, et met les Anglois dans une condition bien différente de celle où ils ont été jusques à present. Ils le connoissent, et voyent bien qu'un roy de différente religion que celle du pays, et qui se trouve armé, ne renoncera pas aisément aux avantages que lui donne la défaite des rebelles, et les troupes qu'il a sur pied." And afterwards: "Le roi d'Angleterre m'a dit que quoiqu'il arrive, il conservera les troupes sur pied, quand même le parlement ne lui donneroit pour les entretenir. Il connoit bien que le parlement verra mal volontiers cet établissement; mais il veut être assuré du dedans de son pays, et il croit ne le pouvoir être sans cela." Dalrymple, 169, 170.

[91] Fox's App. 69; Dalrymple, 153.

[92] It had been the intention of Sunderland and the others to dissolve parliament, as soon as the revenue for life should be settled, and to rely in future on the assistance of France. Fox's App. 59, 60; Mazure, i. 432. But this was prevented, partly by the sudden invasion of Monmouth, which made a new session necessary, and gave hopes of a large supply for the army; and partly by the unwillingness of the King of France to advance as much money as the English government wanted. In fact, the plan of continual prorogations answered as well.

[93] Journals, Nov. 14. Barillon says that the king answered this humble address, "avec des marques de fierté et de colère sur le visage, qui faisoit assez connôitre ses sentimens." Dalrymple, 172. See too his letter in Fox, 139.

A motion was made to ask the Lords' concurrence in this address, which, according to the journals, was lost by 212 to 138. In the Life of James, ii. 55, it is said that it was carried against the motion by only four voices; and this I find confirmed by a manuscript account of the debates (Sloane MSS. 1470), which gives the numbers 212 to 208. The journal probably is mis-printed, as the court and country parties were very equal. It is said in this manuscript, that those who opposed the address, opposed also the motion for requesting the Lords' concurrence in it; but James represents it otherwise, as a device of the court to quash the proceeding.

[94] Coke, 12 Rep. 18.

[95] Vaughan's Reports; Thomas v. Sorrell, 333.

[96] Burnet and others. This hardly appears by Northey's argument.

[97] State Trials, xi. 1165-1280; 2 Shower's Reports, 475.

[98] The dissentient judge was Street; and Powell doubted. The king had privately secured this opinion of the bench in his favour before the action was brought. Life of James, ii. 79.

[99] State Trials, xi. 1132 et seq. The members of the commission were the primate Sancroft (who never sat), Crew and Sprat, Bishops of Durham and Rochester the chancellor Jefferies, the Earls of Rochester and Sunderland, and Chief-Justice Herbert. Three were to form a quorum, but the chancellor necessarily to be one. Ralph, 929. The Earl of Mulgrave was introduced afterwards.

[100] Mazure, ii. 130.

[101] Henry Earl of Clarendon's papers, ii. 278. In Gutch's Collectanea Curiosa, vol. i. p. 287, we find not only this license to Massey, but one to Obadiah Walker, master of University College, and to two fellows of the same, and one of Brazen-nose College, to absent themselves from church, and not to take the oaths of supremacy and allegiance, or do any other thing to which, by the laws and statutes of the realm, or those of the college, they are obliged. There is also, in the same book, a dispensation for one Sclater, curate of Putney, and rector of Esher, from using the common prayer, etc., etc. Id. p. 290. These are in May 1686, and subscribed by Powis, the solicitor-general. The attorney-general, Sawyer, had refused; as we learn from Reresby, p. 133, the only contemporary writer, perhaps, who mentions this very remarkable aggression on the established church.

[102] The catholic lords, according to Barillon, had represented to the king, that nothing could be done with parliament so long as the treasurer caballed against the designs of his majesty. James promised to dismiss him if he did not change his religion. Mazure, ii. 170. The queen had previously been rendered his enemy by the arts of Sunderland, who persuaded her that Lord and Lady Rochester had favoured the king's intimacy with the Countess of Dorchester in order to thwart the popish intrigue. Id. 149. "On voit," says Barillon, on the treasurer's dismissal, "que la cabale catholique a entièrement prevalu. On s'attendoit depuis quelque temps à ce qui est arrivé au comte de Rochester; mais l'exécution fait encore une nouvelle impression sur les esprits."—P. 181.

[103] Life of James, 74. Barillon frequently mentions this cabal, as having in effect the whole conduct of affairs in their hands. Sunderland belonged to them; but Jefferies, being reckoned on the protestant side, had, I believe, very little influence for at least the two latter years of the king's reign. "Les affaires de ce pays-ci," says Bonrepos, in 1686, "ne roulent à présent que sur la religion. Le roi est absolument gouverné par les catholiques. My Lord Sunderland ne se maintient que par ceux-ci, et par son dévouement à faire tout ce qu'il croit être agréable sur ce point. Il a le secret des affaires de Rome." Mazure, ii. 124. "On feroit ici," says Barillon, the same year, "ce que on fait en France" [that is, I suppose, dragonner et fusilier les hérétiques] "si l'on pouvoit espérer de réussir."—P. 127.

[104] Rochester makes so very bad a figure in all Barillon's correspondence, that there really seems no want of candour in this supposition. He was evidently the most active co-operator in the connection of both the brothers with France, and seems to have had as few compunctious visitings, where the church of England was not concerned, as Sunderland himself. Godolphin was too much implicated, at least by acquiescence, in the counsels of this reign; yet we find him suspected of not wishing "se passer entièrement de parlement, et à rompre nettement avec le prince d'Orange." Fox, Append, p. 60.

If Rochester had gone over to the Romanists, many, probably, would have followed: on the other hand, his steadiness retained the wavering. It was one of the first great disappointments with which the king met. But his dismissal from the treasury created a sensible alarm. Dalrymple, 179.

[105] Lord Dartmouth wrote to say that Fletcher told him there were good grounds to suspect that the prince, underhand, encouraged the expedition, with design to ruin the Duke of Monmouth; and this Dalrymple believes. P. 136. It is needless to observe, that such subtle and hazardous policy was totally out of William's character; nor is there much more reason to believe what is insinuated by James himself (Macpherson's Extracts, p. 144; Life of James, ii. 34), that Sunderland had been in secret correspondence with Monmouth; unless indeed it were, as seems hinted in the latter work, with the king's knowledge.

[106] The number of persons who suffered the sentence of the law, in the famous western assize of Jefferies, has been differently stated; but according to a list in the Harleian Collection, n. 4689, it appears to be as follows: at Winchester, one (Mrs. Lisle) executed; at Salisbury, none; at Dorchester, 74 executed, 171 transported; at Exeter, 14 executed, 7 transported; at Taunton, 144 executed, 284 transported; at Wells, 97 executed, 393 transported. In all, 330 executed, 855 transported; besides many that were left in custody for want of evidence. It may be observed, that the prisoners sentenced to transportation appear to have been made over to some gentlemen of interest at court; among others, to Sir Christopher Musgrave, who did not blush to beg the grant of their unfortunate countrymen, to be sold as slaves in the colonies.

The apologists of James II. have endeavoured to lay the entire blame of these cruelties on Jefferies, and to represent the king as ignorant of them. Roger North tells a story of his brother's interference, which is plainly contradicted by known dates, and the falsehood of which throws just suspicion on his numerous anecdotes. See State Trials, xi. 303. But the king speaks with apparent approbation of what he calls Jefferies's campaign, in writing to the Prince of Orange (Dalrymple, 165); and I have heard that there are extant additional proofs of his perfect acquaintance with the details of those assizes; nor, indeed, can he be supposed ignorant of them. Jefferies himself, before his death, declared that he had not been half bloody enough for him by whom he was employed. Burnet, 651 (note to Oxford edition, vol. iii.). The king, or his biographer in his behalf, makes a very awkward apology for the execution of Major Holmes, which is shown by himself to have been a gross breach of faith. Life of James, ii. 43.

It is unnecessary to dwell on what may be found in every history: the trials of Mrs. Lisle, Mrs. Gaunt, and Alderman Cornish; the former before Jefferies, the two latter before Jones, his successor as chief justice of K. B., a judge nearly as infamous as the former, though not altogether so brutal. Both Mrs. Lisle's and Cornish's convictions were without evidence, and consequently were reversed after the revolution. State Trials, vol. xi.

[107] Several proofs of this appear in the correspondence of Barillon. Fox, 135; Mazure, ii. 22. The nuncio, M. d'Adda, was a moderate man, and united with the moderate catholic peers, Bellasis, Arundel, and Powis. Id. 127. This party urged the king to keep on good terms with the Prince of Orange, and to give way about the test. Id. 184, 255. They were disgusted at Father Petre's introduction into the privy council; 308, 353. But it has ever been the misfortune of that respectable body to suffer unjustly for the follies of a few. Barillon admits, very early in James's reign, that many of them disliked the arbitrary proceedings of the court; "ils prétendent être bons Anglois, c'est-à-dire, ne pas désirer que le roi d'Angleterre ôte à la nation ses privilèges et ses libertés." Mazure, i. 404.

William openly declared his willingness to concur in taking off the penal laws, provided the test might remain. Burnet, 694; Dalrymple, 184; Mazure, ii. 216, 250, 346. James replied that he must have all or nothing. Id. 353.

[108] I do not know that this intrigue has been brought to light before the recent valuable publication of M. Mazure, certainly not with such full evidence. See i. 417; ii. 128, 160, 165, 167, 182, 188, 192. Barillon says to his master in one place: "C'est une matière fort délicate à traiter. Je sais pourtant qu'on en parle au roi d'Angleterre; et qu'avec le temps on ne désespère pas de trouver des moyens pour faire passer la couronne sur la tête d'un heritier catholique. Il faut pour cela venir à bout de beaucoup des choses qui ne sont encore que commencées."

[109] Burnet, Dalrymple, Mazure.

[110] The correspondence began by an affectedly obscure letter of Lady Sunderland to the Prince of Orange, dated March 7, 1687. Dalrymple, 187. The meaning, however, cannot be misunderstood. Sunderland himself sent a short letter of compliment by Dykvelt, May 28, referring to what that envoy had to communicate. Churchill, Nottingham, Rochester, Devonshire, and others, wrote also by Dykvelt. Halifax was in correspondence at the end of 1686.

[111] Sunderland does not appear, by the extracts from Barillon's letters published by M. Mazure, to have been the adviser of the king's most injudicious measures. He was united with the queen, who had more moderation than her husband. It is said by Barillon that both he and Petre were against the prosecution of the bishops, ii. 448. The king himself ascribes this step to Jefferies, and seems to glance also at Sunderland as its adviser. Life of James, ii. 156. He speaks more explicitly as to Jefferies in Macpherson's Extracts, 151. Yet Lord Clarendon's Diary, ii. 49, tends to acquit Jefferies. Probably the king had nobody to blame but himself. One cause of Sunderland's continuance in the apparent support of a policy which he knew to be destructive was his poverty. He was in the pay of France, and even importunate for its money. Mazure, 372; Dalrymple, 270 et post. Louis only gave him half what he demanded. Without the blindest submission to the king, he was every moment falling; and this drove him in to a step as injudicious as it was unprincipled, his pretended change of religion, which was not publicly made till June 1688, though he had been privately reconciled, it is said (Mazure, ii. 463) more than a year before by Father Petre.

[112] "This defection of those his majesty had hitherto put the greatest confidence in [Clarendon and Rochester], and the sullen disposition of the church of England party in general, made him think it necessary to reconcile another; and yet he hoped to do it in such a manner as not to disgust quite the church-man neither." Life of James, ii. 102.

[113] London Gazette, March 18, 1687; Ralph, 945.

[114] Ralph, 943; Mazure, ii. 207.

[115] London Gazette, June 9, 1687. Shower had been knighted a little before, on presenting, as recorder of London, an address from the grand jury of Middlesex, thanking the king for his declaration. Id. May 12.

[116] London Gazette of 1687 and 1688, passim; Ralph, 946, 368. These addresses grew more ardent after the queen's pregnancy became known. They were renewed of course, after the birth of the Prince of Wales. But scarce any appear after the expected invasion was announced. The Tories (to whom add the dissenters) seem to have thrown off the mask at once, and deserted the king whom they had so grossly flattered, as instantaneously as parasites on the stage desert their patron on the first tidings of his ruin.

The dissenters have been a little ashamed of their compliance with the declaration, and of their silence in the popish controversy during this reign. Neal, 755, 768; and see Biogr. Brit. art. Alsop. The best excuses are, that they had been so harassed that it was not in human nature to refuse a mitigation of suffering on almost any terms; that they were by no means unanimous in their transitory support of the court; and that they gladly embraced the first offers of an equal indulgence held out to them by the church.

[117] "The king now finding that nothing which had the least appearance of novelty, though never so well warranted by the prerogative, would go down with the people, unless it had the parliamentary stamp on it, resolved to try if he could get the penal laws and test taken off by that authority." Life of James, ii. 134. But it seems by M. Mazure's authorities, that neither the king nor Lord Sunderland wished to convoke a parliament, which was pressed forward by the eager catholics, ii. 399.

[118] Life of James, p. 139.

[119] Ralph, 965, 966. The object was to let in the dissenters. This was evidently a desperate game: James had ever mortally hated the sectaries as enemies to monarchy; and they were irreconcilably adverse to all his schemes.

[120] Burnet; Life of James, 169; D'Oyly's Life of Sancroft, i. 326. Lord Halifax, as is supposed, published a letter of advice to the dissenters, warning them against a coalition with the court, and promising all indulgence from the church. Ralph, 950; Somers Tracts, viii. 50.

[121] Ralph, 967; Lonsdale, p. 15. "It is to be observed," says the author of this memoir, "that most part of the offices in the nation, as justices of the peace, deputy-lieutenants, mayors, aldermen, and freemen of towns, are filled with Roman catholics and dissenters, after having suffered as many regulations as were necessary for that purpose. And thus stands the state of this nation in this month of September 1688."—P. 34. Notice is given in the London Gazette for December 11, 1687, that the lists of justices and deputy-lieutenants would be revised.

[122] Life of James, 183.

[123] Mazure, ii. 302.

[124] The reader will find almost everything relative to the subject in that incomparable repertory, the State Trials, xii. 1; also some notes in the Oxford edition of Burnet.

[125] Parker's Reasons for Abrogating the Test are written in such a tone as to make his readiness to abandon the protestant side very manifest, even if the common anecdotes of him should be exaggerated.

[126] It seems, however, confirmed by Mazure, ii. 390, with the addition, that Petre, like a second Wolsey, aspired also to be chancellor. The pope, however, would not make him a bishop, against the rules of the order of jesuits to which he belonged. Id. 241. James then tried, through Lord Castlemain, to get him a cardinal's hat, but with as little success.

[127] "Above twenty years together," says Sir Roger L'Estrange, perhaps himself a disguised catholic, in his reply to the reasons of the clergy of the diocese of Oxford against petitioning (Somers Tracts, viii. 45), "without any regard to the nobility, gentry, and commonalty, our clergy have been publishing to the world that the king can do greater things than are done in his declaration; but now the scene is altered, and they are become more concerned to maintain their reputation even with the commonalty than with the king." See also in the same volume, p. 19. "A remonstrance from the church of England to both houses of parliament," 1685; and p. 145, "A new test of the church of England's loyalty;" both, especially the latter, bitterly reproaching her members for their apostacy from former professions.

[128] Ralph, 982.

[129] See State Trials, xii. 183; D'Oyly's Life of Sancroft, i. 250.

[130] Fox, App. 29; Dalrymple, 107; Mazure, i. 396, 433.

[131] Several proofs of this occur in the course of M. Mazure's work. When the Dutch ambassador, Van Citers, showed him a paper, probably forged to exasperate him, but purporting to be written by some catholics, wherein it was said that it would be better for the people to be vassals of France than slaves of the devil, he burst out into rage. "Jamais! non, jamais! je ne ferai rien qui me puisse mettre au dessous des rois de France et d'Espagne. Vassal, vassal de la France!" s'écria-t-il avec emportement. "Monsieur! si le parlement avoit voulu, s'il vouloit encore, j'aurois porté, je porterois encore la monarchie a un de considération qu'elle n'a jamais eu sous aucune des rois mes prédécesseurs, et votre état y trouveroit peut-être sa propre sécurité.'" Vol. ii. 165. Sunderland said to Barillon, "Le roi d'Angleterre se reproche de ne pas être en Europe tout ce qu'il devoit être; et souvent il se plaint que le roi votre maître n'a pas pour lui assez de considération." Id. 313. On the other hand, Louis was much mortified that James made so few applications for his aid. His hope seems to have been that by means of French troops, or troops at least in his pay, he should get a footing in England; and this was what the other was too proud and jealous to permit. "Comme le roi," he said, in 1687, "ne doute pas de mon affection et du désir que j'ai de voir la religion catholique bien établie en Angleterre, il faut croire qu'il se trouve assez de force et d'autorité pour exécuter ses desseins, puis-qu'il n'a pas recours à moi."—P. 258; also 174, 225, 320.

[132] James affected the same ceremonial as the King of France, and received the latter's ambassador sitting and covered. Louis only said, smiling, "Le roi mon frère est fier, mais il aime assez les pistoles de France." Mazure, i. 423. A more extraordinary trait of James's pride is mentioned by Dangeau, whom I quote from the Quarterly Review, xix. 470. After his retirement to St. Germains, he wore violets in court mourning; which, by etiquette, was confined to the kings of France. The courtiers were a little astonished to see solem geminum, though not at a loss where to worship. Louis, of course, had too much magnanimity to express resentment. But what a picture of littleness of spirit does this exhibit in a wretched pauper, who could only escape by the most contemptible insignificance the charge of most ungrateful insolence!

[133] Mazure, iii. 50. James was so much out of humour at D'Avaux's interference, that he asked his confidents, "if the King of France thought he could treat him like the cardinal of Furstenburg," a creature of Louis XIV. whom he had set up for the electorate of Cologne. Id. 69. He was in short so much displeased with his own ambassador at the Hague, Skelton, for giving into his declaration of D'Avaux, that he not only recalled but sent him to the Tower. Burnet is therefore mistaken (p. 768) in believing that there was actually an alliance, though it was very natural that he should give credit to what an ambassador asserted in a matter of such importance. In fact, a treaty was signed between James and Louis, Sept. 13, by which some French ships were to be under the former's orders. Mazure, iii. 67.

[134] Louis continued to find money, though despising James and disgusted with him, probably with a view to his own grand interests. He should, nevertheless, have declared war against Holland in October, which must have put a stop to the armament. But he had discovered that James with extreme meanness had privately offered, about the end of September, to join the alliance against him as the only resource. This wretched action is first brought to light by M. Mazure, iii. 104. He excused himself to the King of France by an assurance that he was not acting sincerely towards Holland. Louis, though he gave up his intention of declaring war, behaved with great magnanimity and compassion towards the falling bigot.

[135] Halifax all along discouraged the invasion, pointing out that the king made no progress in his schemes. Dalrymple, passim. Nottingham said he would keep the secret, but could not be a party to a treasonable undertaking. Id. 228; Burnet, 764; and wrote as late as July to advise delay and caution. Notwithstanding the splendid success of the opposite counsels, it would be judging too servilely by the event not to admit that they were tremendously hazardous.

[136] The invitation to William seems to have been in debate some time before the Prince of Wales's birth; but it does not follow that it would have been despatched if the queen had borne a daughter; nor do I think that it should have been.

[137] Ralph, 980; Mazure, ii. 367.

[138] Dalrymple, 216, 228. The prince was urged in the memorial of the seven to declare the fraud of the queen's pregnancy to be one of the grounds of his expedition. He did this: and it is the only part of his declaration that is false.

[139] State Trials, xii. 151. Mary put some very sensible questions to her sister, which show her desire of reaching the truth in so important a matter. They were answered in a style which shows that Anne did not mean to lessen her sister's suspicions. Dalrymple, 305. Her conversation with Lord Clarendon on this subject, after the depositions had been taken, is a proof that she had made up her mind not to be convinced. Henry Earl of Clarendon's Diary, 77, 79; State Trials, ubi supra.

[140] M. Mazure has collected all the passages in the letters of Barillon and Bonrepos to the court of France relative to the queen's pregnancy (ii. 366); and those relative to the birth of the Prince of Wales. P. 547. It is to be observed that this took place more than a month before the time expected.

[141] Montesquieu.

[142] Some short pamphlets, written at this juncture to excite sympathy for the king, and disapprobation of the course pursued with respect to him, are in the Somers Collection, vol. ix. But this force put upon their sovereign first wounded the consciences of Sancroft and the other bishops, who had hitherto done as much as in their station they well could to ruin the king's cause and paralyse his arms. Several modern writers have endeavoured to throw an interest about James at the moment of his fall, either from a lurking predilection for all legitimately crowned heads, or from a notion that it becomes a generous historian to excite compassion for the unfortunate. There can be no objection to pitying James, if this feeling is kept unmingled with any blame of those who were the instruments of this misfortune. It was highly expedient for the good of this country, because the revolution settlement could not otherwise be attained, to work on James's sense of his deserted state by intimidation; and for that purpose the order conveyed by three of his own subjects, perhaps with some rudeness of manner, to leave Whitehall was necessary. The drift of several accounts of the revolution that may be read is to hold forth Mulgrave, Craven, Arran, and Dundee to admiration, at the expense of William and of those who achieved the great consolidation of English liberty.

[143] Parl. Hist. v. 26. The former address on the king's first quitting London, signed by the peers and bishops, who met at Guildhall, Dec. 11, did not, in express terms, desire the Prince of Orange to assume the government, or to call a parliament, though it evidently tended to that result, censuring the king and extolling the prince's conduct. Id. 19. It was signed by the archbishop, his last public act. Burnet has exposed himself to the lash of Ralph by stating this address of Dec. 11 incorrectly.

[144] Commons' Journals; Parl. Hist.

[145] Somerville and several other writers have not accurately stated the question; and suppose the Lords to have debated whether the throne, on the hypothesis of its vacancy, should be filled by a king or a regent. Such a mode of putting the question would have been absurd. I observe that M. Mazure has been deceived by these authorities.

[146] Parl. Hist. 61. The chief speakers on this side were old Sir Thomas Clarges, brother-in-law of General Monk, who had been distinguished as an opponent of administration under Charles and James, and Mr. Finch, brother of Lord Nottingham, who had been solicitor-general to Charles, but was removed in the late reign.

[147] James is called "the late king" in a resolution of the Lords on Feb. 2.

[148] 13 Car. II. c. i.; 17 Car. II. c. ii.

[149] This was carried by sixty-two to forty-seven, according to Lord Clarendon; several of the tories going over, and others who had been hitherto absent coming down to vote. Forty peers protested, including twelve bishops, out of seventeen present. Trelawney, who had voted against the regency, was one of them; but not Compton, Lloyd of St. Asaph, Crewe, Sprat, or Hall; the three former, I believe, being in the majority. Lloyd had been absent when the vote passed against a regency, out of unwillingness to disagree with the majority of his brethren; but he was entirely of Burnet's mind. The votes of the bishops are not accurately stated in most books; which has induced me to mention them here. Lords' Journals, Feb. 6.

[150] It had been resolved, Jan. 29, that before the committee proceed to fill the throne now vacant, they will proceed to secure our religion, laws, and liberties.

[151] See Burnet's remarkable conversation with Bentinck, wherein the former warmly opposed the settlement of the crown on the Prince of Orange alone, as Halifax had suggested. But nothing in it is more remarkable than that the bishop does not perceive that this was virtually done; for it would be difficult to prove that Mary's royalty differed at all from that of a queen consort, except in having her name in the style. She was exactly in the same predicament as Philip had been during his marriage with Mary I. Her admirable temper made her acquiesce in this exclusion from power, which the sterner character of her husband demanded; and with respect to the conduct of the convention, it must be observed that the nation owed her no particular debt of gratitude, nor had she any better claim than her sister to fill a throne by election, which had been declared vacant. In fact, there was no middle course between what was done, and following the precedent of Philip, as to which Bentinck said, he fancied the Prince would not like to be his wife's gentleman usher; for a divided sovereignty was a monstrous and impracticable expedient in theory, however the submissive disposition of the queen might have prevented its mischiefs. Burnet seems to have had a puzzled view of this; for he says afterwards, "it seemed to be a double-bottomed monarchy, where there were two joint sovereigns; but those who know the queen's temper and principles had no apprehensions of divided counsels, or of a distracted government." Vol. ii. 2. The convention had not trusted to the queen's temper and principles. It required a distinct act of parliament (2 W. and M. c. 6) to enable her to exercise the regal power during the king's absence from England.

[152] Parl. Hist. v. 54.

[153] Parl. Hist. v. 108.

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

[155] Parl. Hist. 345.

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

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

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

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

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

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

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

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

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

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

[162] Burnet; Ralph, 174, 179.

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

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

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

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

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

[167] Parl. Hist. 150.

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

[169] Parl. Hist. 187.

[170] Parl. Hist. 193.

[171] Parl. Hist. iv. 1359.

[172] Hatsell's Precedents, iii. 80 et alibi; Hargrave's Juridical Arguments, i. 394.

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

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

[175] Burnet, 35.

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

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

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

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

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

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

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

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

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

Infelix! utcunque ferant ea facta minores.

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

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

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

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

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

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

[185] Id. Jan. 11, 1692-3.

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

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

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

[189] Ralph, 350; Somers Tracts, x. 211.

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

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

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

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

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

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

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

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

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

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

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

[197] Life of James, ii. 558.

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

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

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

[200] Godfrey's "Short Account of Bank of England," in Somers Tracts, xi. 5; Kennet's Complete Hist. iii. 723; Ralph, 681; Shrewsbury Papers; Macpherson's Annals of Commerce, A.D. 1697; Sinclair's Hist. of Revenue.

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

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

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

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

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

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

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

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

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

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

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

[211] Parl. Hist. 1171, 1202, etc.; Ralph; Burnet; Shrewsbury Correspondence. See also Davenant's "Essay on Grants and Resumptions," and sundry pamphlets in Somers Tracts, vol. ii., and State Tracts, temp. W. 3, vol. ii.

[212] In Feb. 1692.

[213] See the same authorities, especially the Shrewsbury Letters, p. 602.

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

[215] Id. Nov. 1.

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

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

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

[219] Parl. Hist. 941; Burnet, 105.

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

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

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

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

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

[224] Lords' Journals.

[225] Parl. Hist. 754.

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

[227] Rot. Parl. ii. 239; 3 Inst. 1.

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

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

[229] Hale, 121.

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

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

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

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

[233] Hale, 123; Foster, 213.

[234] Lord George Gordon's case, State Trials, xxi. 649.

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

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

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

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

[239] 7 W. 3, c. 3, § 4; Foster, 257.

[240] Foster, 234.

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

[242] State Trials, xii. 646.—See 668 and 799.

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

[244] Parl. Hist. v. 698.

[245] Id. v. 675.

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

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

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

[249] State Trials, xii. 1051.

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

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

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

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

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

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

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

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

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

[258] Parl. Hist. iv. 1311; Ralph, 559.

[259] Baxter; Neal; Palmer's Nonconformist's Memorial.

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

[261] Burnet; Parl. Hist. 184.

[262] Parl. Hist. 196.

[263] Id. 212, 216.

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

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

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

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

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

[269] Butler's Memoirs of Catholics, ii. 64.

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

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

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

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

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

[275] Life of Clarendon, 319.

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

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

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

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

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

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

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

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

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

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

[284] 11 & 12 W. 3, c. 2, § 50.

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

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

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

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

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

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

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

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

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

[294] 4 Anne, c. 8; Parl. Hist. 457 et post; Burnet, 429.

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

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

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

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

[298] State Trials, xv. 95.

[299] Id. 115.

[300] Id. 127.

[301] Id. 61.

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

[303] State Trials, 407.

[304] Id. 110.

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

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

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

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

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

[310] Parl. Hist. vi. 4.

[311] Nov. 27; Parl. Hist. 477.

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

[313] Mémoires de Torcy, vol. ii. passim; Coxe's Marlborough, vol. iii.; Bolingbroke's Letters on History, and Lord Walpole's answer to them; Cunningham; Somerville, 840.

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

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

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

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

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

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

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

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

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

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

[321] Macpherson, ii. 74 et post; Hooke's Negotiations; Lockhart's Commentaries; Ker of Kersland's Memoirs, 45; Burnet; Cunningham; Somerville.

[322] Burnet, 502.

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

[324] Memoirs of Berwick, 1778 (English translation). And compare Lockhart's Commentaries, p. 368; Macpherson, sub. ann. 1712 and 1713, passim.

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

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

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

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

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

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

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

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

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

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

[329] Lockhart gives us a speech of Sir William Whitelock in 1714, bitterly inveighing against the elector of Hanover, who, he hoped, would never come to the crown. Some of the whigs cried out on this that he should be brought to the bar; when Whitelock said he would not recede an inch; he hoped the queen would outlive that prince, and in comparison to her he did not value all the princes of Germany one farthing. P. 469. Swift, in "Some Free Thoughts upon the present State of Affairs," 1714, speaks with much contempt of the house of Hanover and its sovereign; and suggests, in derision, that the infant son of the electoral prince might be invited to take up his residence in England. He pretends in this tract, as in all his writings, to deny entirely that there was the least tendency towards jacobitism, either in any one of the ministry, or even any eminent individual out of it; but with so impudent a disregard of truth that I am not perfectly convinced of his own innocence as to that intrigue. Thus, in his "Inquiry into the Behaviour of the Queen's last Ministry," he says, "I remember, during the late treaty of peace, discoursing at several times with some very eminent persons of the opposite side with whom I had long acquaintance. I asked them seriously, whether they or any of their friends did in earnest believe, or suspect the queen or the ministry to have any favourable regards towards the Pretender? They all confessed for themselves that they believed nothing of the matter," etc. He then tells us that he had the curiosity to ask almost every person in great employment, whether they knew or had heard of any one particular man, except professed nonjurors, that discovered the least inclination towards the Pretender; and the whole number they could muster up did not amount to above five or six; among whom one was a certain old lord lately dead, and one a private gentleman, of little consequence and of a broken fortune, etc. (vol. 15, p. 94, edit. 12mo, 1765). This acute observer of mankind well knew that lying is frequently successful in the ratio of its effrontery and extravagance. There are, however, some passages in this tract, as in others written by Swift, in relation to that time, which serve to illustrate the obscure machinations of those famous last years of the queen.

[330] On a motion in the House of Lords that the protestant succession was in danger, April 5, 1714, the ministry had only a majority of 76 to 69, several bishops and other tories voting against them. Parl. Hist. vi. 1334. Even in the Commons the division was but 256 to 208. Id. 1347.

[331] Somerville has a separate dissertation on the danger of the protestant succession, intended to prove that it was in no danger at all, except through the violence of the whigs in exasperating the queen. It is true that Lockhart's Commentaries were not published at this time; but he had Macpherson before him, and the Memoirs of Berwick, and even gave credit to the authenticity of Mesnager, which I do not. But this sensible, and on the whole impartial writer, had contracted an excessive prejudice against the whigs of that period as a party, though he seems to adopt their principles. His dissertation is a laboured attempt to explain away the most evident facts, and to deny what no one of either party at that time would probably have in private denied.

[332] The queen was very ill about the close of 1713; in fact it became evident, as it had long been apprehended, that she could not live much longer. The Hanoverians, both whigs and tories, urged that the electoral prince should be sent for; it was thought that whichever of the competitors should have the start upon her death would succeed in securing the crown. Macpherson, 385, 546, 557 et alibi. Can there be a more complete justification of this measure, which Somerville and the tory writers treat as disrespectful to the queen? The Hanoverian envoy, Schutz, demanded the writ for the electoral prince without his master's orders; but it was done with the advice of all the whig leaders (Id. 592), and with the sanction of the Electress Sophia, who died immediately after. "All who are for Hanover believe the coming of the electoral prince to be advantageous; all those against it are frightened at it." Id. 596. It was doubtless a critical moment; and the court of Hanover might be excused for pausing in the choice of dangers, as the step must make the queen decidedly their enemy. She was greatly offended, and forbade the Hanoverian minister to appear at court. Indeed she wrote to the elector, on May 19, expressing her disapprobation of the prince's coming over to England, and "her determination to oppose a project so contrary to her royal authority, however fatal the consequences may be." Id. 621. Oxford and Bolingbroke intimate the same. Id. 593; and see Bolingbroke Correspondence, iv. 512, a very strong passage. The measure was given up, whether from unwillingness on the part of George to make the queen irreconcilable, or, as is at least equally probable, out of jealousy of his son. The former certainly disappointed his adherents by more apparent apathy than their ardour required; which will not be surprising, when we reflect that, even upon the throne, he seemed to care very little about it. Macpherson, sub ann. 1714, passim.

[333] He was strongly pressed by his English adherents to declare himself a protestant. He wrote a very good answer. Macpherson, 436. Madame de Maintenon says, some catholics urged him to the same course, "par une politique poussée un peu trop loin." Lettres à la Princesse des Ursins, ii. 428.

[334] The rage of the tory party against the queen and Lord Oxford for retaining whigs in office is notorious from Swift's private letters, and many other authorities. And Bolingbroke, in his letter to Sir W. Wyndham, very fairly owns their intention "to fill the employments of the kingdom, down to the meanest, with tories."—"We imagined," he proceeds, "that such measures, joined to the advantages of our numbers and our property, would secure us against all attempts during her reign; and that we should soon become too considerable not to make our terms in all events which might happen afterwards; concerning which, to speak truly, I believe few or none of us had any very settled resolution." P. 11. It is rather amusing to observe that those who called themselves the tory or church party, seem to have fancied they had a natural right to power and profit, so that an injury was done them when these rewards went another way; and I am not sure that something of the same prejudice has not been perceptible in times a good deal later.

[335] Though no republican party, as I have elsewhere observed, could with any propriety be said to exist, it is easy to perceive that a certain degree of provocation from the Crown might have brought one together in no slight force. These two propositions are perfectly compatible.

[336] This is well put by Bishop Willis in his speech on the bill against Atterbury. Parl. Hist. viii. 305. In a pamphlet, entitled "English Advice to the Freeholders" (Somers Tracts, xiii. 521), ascribed to Atterbury himself, a most virulent attack is made on the government, merely because what he calls the church party had been thrown out of office. "Among all who call themselves whigs," he says, "and are of any consideration as such, name me the man I cannot prove to be an inveterate enemy to the church of England; and I will be a convert that instant to their cause." It must be owned perhaps that the whig ministry might better have avoided some reflections on the late times in the addresses of both houses; and still more, some not very constitutional recommendations to the electors, in the proclamation calling the new parliament in 1714 Parl. Hist. vi. 44, 50. "Never was prince more universally well received by subjects than his present majesty on his arrival; and never was less done by a prince to create a change in people's affections. But so it is, a very observable change hath happened. Evil infusions were spread on the one hand; and, it may be, there was too great a stoicism or contempt of popularity on the other." "Argument to prove the Affections of the People of England to be the best Security for the Government," p. 11 (1716). This is the pamphlet written to recommend lenity towards the rebels, which Addison has answered in the Freeholder. It is invidious, and perhaps secretly jacobite. Bolingbroke observes, in the letter already quoted, that the Pretender's journey from Bar, in 1714, was a mere farce, no party being ready to receive him; but "the menaces of the whigs, backed by some very rash declarations [those of the king], and little circumstances of humour, which frequently offend more than real injuries, and by the entire change of all persons in employment, blew up the coals."—P. 34. Then, he owns, the tories looked to Bar. "The violence of the whigs forced them into the arms of the Pretender." It is to be remarked on all this, that, by Bolingbroke's own account, the tories, if they had no "formed design" or "settled resolution" that way, were not very determined in their repugnance before the queen's death; and that the chief violence of which they complained was, that George chose to employ his friends rather than his enemies.

[337] The trials after this rebellion were not conducted with quite that appearance of impartiality which we now exact from judges. Chief Baron Montagu reprimanded a jury for acquitting some persons indicted for treason; and Tindal, an historian very strongly on the court side, admits that the dying speeches of some of the sufferers made an impression on the people, so as to increase rather than lessen the number of jacobites. Continuation of Rapin, p. 501 (folio edit.). There seems, however, upon the whole, to have been greater and less necessary severity after the rebellion in 1745; and upon this latter occasion it is impossible not to reprobate the execution of Mr. Ratcliffe (brother of that Earl of Derwentwater who had lost his head in 1716), after an absence of thirty years from this country, to the sovereign of which he had never professed allegiance nor could owe any, except by the fiction of our law.

[338] Parl. Hist. 73. It was carried against Oxford by 247 to 127, Sir Joseph Jekyll strongly opposing it, though he had said before (Id. 67) that they had more than sufficient evidence against Bolingbroke on the statute of Edward III. A motion was made in the Lords, to consult the judges whether the articles amounted to treason, but lost by 84 to 52. Id. 154. Lord Cowper on this occasion challenged all the lawyers in England to disprove that proposition. The proposal of reference to the judges was perhaps premature; but the house must surely have done this before their final sentence, or shown themselves more passionate than in the case of Lord Strafford.

[339] Parl. Hist. vii. 486. The division was 88 to 56. There was a schism in the whig party at this time; yet I should suppose the ministers might have prevented this defeat, if they had been anxious to do so. It seems, however, by a letter in Coxe's Memoirs of Walpole, vol. ii. p. 123, that the government were for dropping the charge of treason against Oxford, "it being very certain that there is not sufficient evidence to convict him of that crime," but for pressing those of misdemeanour.

[340] Parl. Hist. vii. 105.

[341] Parl. Hist. vi. 972. Burnet, 560, makes some observations on the vote passed on this occasion, censuring the late ministers for advising an offensive war in Spain. "A resolution in council is only the sovereign's act, who upon hearing his counsellors deliver their opinions, forms his own resolution; a counsellor may indeed be liable to censure for what he may say at that board; but the resolution taken there has been hitherto treated with a silent respect; but by that precedent it will be hereafter subject to a parliamentary inquiry." Speaker Onslow justly remarks that these general and indefinite sentiments are liable to much exception, and that the bishop did not try them by his whig principles. The first instance where I find the responsibility of some one for every act of the Crown strongly laid down is in a speech of the Duke of Argyle, in 1739. Parl. Hist. ix. 1138. "It is true," he says, "the nature of our constitution requires that public acts should be issued out in his majesty's name; but for all that, my lords, he is not the author of them."

[342] "Lord Bolingbroke used to say that the restraining orders to the Duke of Ormond were proposed in the cabinet council, in the queen's presence, by the Earl of Oxford, who had not communicated his intention to the rest of the ministers; and that Lord Bolingbroke was on the point of giving his opinion against it, when the queen, without suffering the matter to be debated, directed these orders to be sent, and broke up the council. This story was told by the late Lord Bolingbroke to my father." Note by Lord Hardwicke on Burnet (Oxf. edit. vi. 119). The noble annotator has given us the same anecdote in the Hardwicke State Papers, ii. 482; but with this variance, that Lord Bolingbroke there ascribes the orders to the queen herself, though he conjectured them to have proceeded from Lord Oxford.

[343] Parl. Hist. vii. 292. The apprehension that parliament, having taken this step, might go on still farther to protract its own duration, was not quite idle. We find from Coxe's Memoirs of Walpole, ii. 217, that in 1720, when the first septennial House of Commons had nearly run its term, there was a project of once more prolonging its life.

[344] Parl. Hist. vii. 589.

[345] The arguments on this side are urged by Addison, in the Old Whig; and by the author of a tract, entitled "Six Questions Stated and Answered."

[346] The speeches of Walpole and others, in the Parliamentary Debates, contain the whole force of the arguments against the peerage bill. Steele in the Plebeian opposed his old friend and coadjutor, Addison, who forgot a little in party and controversy their ancient friendship.

Lord Sunderland held out, by way of inducements to the bill, that the Lords would part with scandalum magnatum, and permit the Commons to administer an oath; and that the king would give up the prerogative of pardoning after an impeachment. Coxe's Walpole, ii. 172. Mere trifles, in comparison with the innovations projected.

[347] The letters in Coxe's Memoirs of Walpole, vol. ii., abundantly show the German nationality, the impolicy and neglect of his duties, the rapacity and petty selfishness of George I. The whigs were much dissatisfied; but fear of losing their places made them his slaves. Nothing can be more demonstrable than that the king's character was the main cause of preserving jacobitism, as that of his competitor was of weakening it.

The habeas corpus was several times suspended in this reign, as it had been in that of William. Though the perpetual conspiracies of the jacobites afforded a sufficient apology for this measure, it was invidiously held up as inconsistent with a government which professed to stand on the principles of liberty. Parl. Hist. v. 153, 267, 604; vii. 276; viii. 38. But some of these suspensions were too long, especially the last, from October 1722 to October 1723. Sir Joseph Jekyll, with his usual zeal for liberty, moved to reduce the time to six months.

[348] "It was first settled by a verbal agreement between Archbishop Sheldon and the Lord Chancellor Clarendon, and tacitly given into by the clergy in general as a great ease to them in taxations. The first public act of any kind relating to it was an act of parliament in 1665, by which the clergy were, in common with the laity, charged with the tax given in that act, and were discharged from the payment of the subsidies they had granted before in convocation; but in this act of parliament of 1665 there is an express saving of the right of the clergy to tax themselves in convocation, if they think fit; but that has been never done since, nor attempted, as I know of, and the clergy have been constantly from that time charged with laity in all public aids to the Crown by the House of Commons. In consequence of this (but from what period I cannot say), without the intervention of any particular law for it, except what I shall mention presently, the clergy (who are not lords of parliament) have assumed, and without any objection enjoyed, the privilege of voting in the election of members of the House of Commons, in virtue of their ecclesiastical freeholds. This has constantly been practised from the time it first began; there are two acts of parliament which suppose it to be now a right. The acts are 10 Anne, c. 23; 18 Geo. II. c. 18. Gibson, Bishop of London, said to me, that this (the taxation of the clergy out of convocation) was the greatest alteration in the constitution ever made without an express law." Speaker Onslow's note on Burnet (Oxf. edit. iv. 508).

[349] The first authority I have observed for this pretension is an address of the House of Lords (19 Nov. 1675) to the throne, for the frequent meeting of the convocation, and that they do make to the king such representations as may be for the safety of the religion established. Lords' Journals. This address was renewed February 22, 1677. But what took place in consequence I am not apprised. It shows, however, some degree of dissatisfaction on the part of the bishops, who must be presumed to have set forward these addresses, at the virtual annihilation of their synod which naturally followed from its relinquishment of self-taxation.

[350] Kennet, 799, 842; Burnet, 280. This assembly had been suffered to sit, probably, in consequence of the tory maxims which the ministry of that year professed.

[351] Wilkins's Concilia, iv.; Burnet, passim; Boyer's Life of Queen Anne, 225; Somerville, 82, 124.

[352] The lower house of convocation, in the late reign, among their other vagaries, had requested "that some synodical notice might be taken of the dishonour done to the church by a sermon preached by Mr. Benjamin Hoadley at St. Lawrence Jewry, Sept. 29, 1705, containing positions contrary to the doctrine of the church, expressed in the first and second parts of the homily against disobedience and wilful rebellion." Wilkins, iv. 634.

[353] These qualities are so apparent, that after turning over some forty or fifty tracts, and consuming a good many hours on the Bangorian controversy, I should find some difficulty in stating with precision the propositions in dispute. It is, however, evident that a dislike, not perhaps exactly to the house of Brunswick, but to the tenor of George I.'s administration, and to Hoadley himself as an eminent advocate for it, who had been rewarded accordingly, was at the bottom a leading motive with most of the church party; some of whom, such as Hare, though originally of a whig connection, might have had disappointments to exasperate them.

There was nothing whatever in Hoadley's sermon injurious to the established endowments and privileges, nor to the discipline and government, of the English church, even in theory. If this had been the case, he might be reproached with some inconsistency in becoming so large a partaker of her honours and emoluments. He even admitted the usefulness of censures for open immoralities, though denying all church authority to oblige any one to external communion, or to pass any sentence which should determine the condition of men with respect to the favour or displeasure of God. Hoadley's Works, ii. 465, 493. Another great question in this controversy was that of religious liberty, as a civil right, which the convocation explicitly denied. And another related to the much debated exercise of private judgment in religion, which, as one party meant virtually to take away, so the other perhaps unreasonably exaggerated. Some other disputes arose in the course of the combat, particularly the delicate problem of the value of sincerity as a plea for material errors.

[354] Tindal, 539.

[355] Parl. Hist. vi. 362.

[356] 10 Anne, c. 2.

[357] 12 Anne, c. 7; Parl. Hist. vi. 1349. The schism act, according to Lockhart, was promoted by Bolingbroke, in order to gratify the high tories, and to put Lord Oxford under the necessity of declaring himself one way or other. "Though the Earl of Oxford voted for it himself, he concurred with those who endeavoured to restrain some parts which they reckoned too severe; and his friends in both houses, particularly his brother auditor Harley, spoke and voted against it very earnestly."—P. 462.

[358] 5 Geo. I. c. 4. The whigs out of power, among whom was Walpole, factiously and inconsistently opposed the repeal of the schism act, so that it passed with much difficulty. Parl. Hist. vii. 569.

[359] The first act of this kind appears to have been in 1727. 1 Geo. II. c. 23. It was repeated next year, intermitted the next, and afterwards renewed in every year of that reign except the fifth, the seventeenth, the twenty-second, the twenty-third, the twenty-sixth, and the thirtieth. Whether these occasional interruptions were intended to prevent the nonconformists from relying upon it, or were caused by some accidental circumstance, must be left to conjecture. I believe that the renewal has been regular every year since the accession of George III. It is to be remembered, that the present work was first published before the repeal of the test act in 1828.

[360] We find in Gutch's Collectanea Curiosa, vol. i. p. 53, a plan, ascribed to Lord Chancellor Macclesfield, for taking away the election of heads of colleges from the fellows, and vesting the nomination in the great officers of state, in order to cure the disaffection and want of discipline which was justly complained of. This remedy would have been perhaps the substitution of a permanent for a temporary evil. It appears also that Archbishop Wake wanted to have had a bill, in 1716, for asserting the royal supremacy, and better regulating the clergy of the two universities (Coxe's Walpole, ii. 122); but I do not know that the precise nature of this is anywhere mentioned. I can scarcely quote Amherst's Terræ Filius as authority; it is a very clever, though rather libellous, invective against the university of Oxford at that time; but from internal evidence, as well as the confirmation which better authorities afford it, I have no doubt that it contains much truth.

Those who have looked much at the ephemeral literature of these two reigns must be aware of many publications fixing the charge of prevalent disaffection on this university, down to the death of George II.; and Dr. King, the famous jacobite master of St. Mary Hall, admits that some were left to reproach him for apostasy in going to court on the accession of the late king in 1760. The general reader will remember the Isis by Mason, and the Triumph of Isis by Warton; the one a severe invective, the other an indignant vindication; but in this instance, notwithstanding the advantages which satire is supposed to have over panegyric, we must award the laurel to the worse cause, and, what is more extraordinary, to the worse poet.

[361] Layer, who suffered on account of this plot, had accused several peers, among others Lord Cowper, who complained to the house of the publication of his name; and indeed, though he was at that time strongly in opposition to the court, the charge seems wholly incredible. Lord Strafford, however, was probably guilty; Lords North and Orrery certainly so. Parl. Hist. viii. 203. There is even ground to suspect that Sunderland, to use Tindal's words, "in the latter part of his life had entered into correspondencies and designs, which would have been fatal to himself or to the public."—P. 657. This is mentioned by Coxe, i. 165; and certainly confirmed by Lockhart, ii. 68, 70. But the reader will hardly give credit to such a story as Horace Walpole has told, that he coolly consulted Sir Robert, his political rival, as to the part they should take on the king's death. Lord Orford's Works, iv. 287.

[362] State Trials, xvi. 324; Parl. Hist. viii. 195 et post. Most of the bishops voted against their restless brother; and Willis, Bishop of Salisbury, made a very good but rather too acrimonious a speech on the bill. Id. 298. Hoadley, who was no orator, published two letters in the newspaper, signed "Britannicus," in answer to Atterbury's defence; which, after all that had passed, he might better have spared. Atterbury's own speech is certainly below his fame, especially the peroration. Id. 267.

No one, I presume, will affect to doubt the reality of Atterbury's connections with the Stuart family, either before his attainder or during his exile. The proofs of the latter were published by Lord Hailes in 1768, and may be found also in Nicholls's edition of Atterbury's Correspondence, i. 148. Additional evidence is furnished by the Lockhart Papers, vol. ii. passim.

[363] The Stuart papers obtained lately from Rome, and now in his majesty's possession, are said to furnish copious evidence of the jacobite intrigues, and to affect some persons not hitherto suspected. We have reason to hope that they will not be long withheld from the public, every motive for concealment being wholly at an end.

It is said that there were not less than fifty jacobites in the parliament of 1728. Coxe, ii. 294.

[364] The tories, it is observed in the MS. journal of Mr. Yorke (second Earl of Hardwicke), showed no sign of affection to the government at the time when the invasion was expected in 1743, but treated it all with indifference. Parl. Hist. xiii. 668. In fact a disgraceful apathy pervaded the nation; and according to a letter from Mr. Fox to Mr. Winnington in 1745, which I only quote from recollection, it seemed perfectly uncertain, from this general passiveness, whether the revolution might not be suddenly brought about. Yet very few comparatively, I am persuaded, had the slightest attachment or prejudice in favour of the house of Stuart; but the continual absence from England, and the Hanoverian predilections of the two Georges, the feebleness and factiousness of their administration, and of public men in general, and an indefinite opinion of misgovernment, raised through the press, though certainly without oppression or arbitrary acts, had gradually alienated the mass of the nation. But this would not lead men to expose their lives and fortunes; and hence the people of England, a thing almost incredible, lay quiet and nearly unconcerned, while the little army of Highlanders came every day nearer to the capital. It is absurd, however, to suppose that they could have been really successful by marching onward; though their defeat might have been more glorious at Finchley than at Culloden.

[365] See Parl. Hist. xiii. 1244; and other proofs might be brought from the same work, as well as from miscellaneous authorities of the age of George II.

[366] See in the Lockhart Papers, ii. 565, a curious relation of Charles Edward's behaviour in refusing to quit France after the peace of Aix-la-Chapelle. It was so insolent and absurd that the government was provoked to arrest him at the opera, and literally to order him to be bound hand and foot; an outrage which even his preposterous conduct could hardly excuse.

Dr. King was in correspondence with this prince for some years after the latter's foolish, though courageous, visit to London in September 1750; which he left again in five days, on finding himself deceived by some sanguine friends. King says he was wholly ignorant of our history and constitution. "I never heard him express any noble or benevolent sentiment, the certain indications of a great soul and good heart; or discover any sorrow or compassion for the misfortune of so many worthy men who had suffered in his cause." Anecdotes of his own Times, p. 201. He goes on to charge him with love of money and other faults. But his great folly in keeping a mistress, Mrs. Walkinshaw, whose sister was housekeeper at Leicester House, alarmed the jacobites. "These were all men of fortune and distinction, and many of them persons of the first quality, who attached themselves to the P. as to a person who they imagined might be made the instrument of saving their country. They were sensible that by Walpole's administration the English government was become a system of corruption; and that Walpole's successors, who pursued his plan without any of his abilities, had reduced us to such a deplorable situation that our commercial interest was sinking, our colonies in danger of being lost, and Great Britain, which, if her powers were properly exerted, as they were afterwards in Mr. Pitt's administration, was able to give laws to other nations, was become the contempt of all Europe."—P. 208. This is in truth the secret of the continuance of jacobitism. But possibly that party were not sorry to find a pretext for breaking off so hopeless a connection, which they seem to have done about 1755. Mr. Pitt's great successes reconciled them to the administration; and his liberal conduct brought back those who had been disgusted by an exclusive policy. On the accession of a new king they flocked to St. James's; and probably scarcely one person of the rank of a gentleman, south of the Tweed, was found to dispute the right of the house of Brunswick after 1760. Dr. King himself, it may be observed, laughs at the old passive obedience doctrine (page 193); so far was he from being a jacobite of that school.

A few nonjuring congregations lingered on far into the reign of George III., presided over by the successors of some bishops whom Lloyd of Norwich, the last of those deprived at the revolution, had consecrated in order to keep up the schism. A list of these is given in D'Oyly's Life of Sancroft, vol. ii. p. 34, whence it would appear that the last of them died in 1779. I can trace the line a little farther: a bishop of that separation, named Cartwright, resided at Shrewsbury in 1793, carrying on the business of a surgeon. State Trials, xxiii. 1073. I have heard of similar congregations in the west of England still later. He had, however, become a very loyal subject to King George: a singular proof of that tenacity of life by which religious sects, after dwindling down through neglect, excel frogs and tortoises; and that, even when they have become almost equally cold-blooded!

[367] Parl. Hist. viii. 904.

[368] Id. vii. 536.

[369] 8 Geo. 2, c. 30; Parl. Hist. viii. 883.

[370] The military having been called in to quell an alleged riot at Westminster election in 1741, it was resolved (Dec. 22nd) "that the presence of a regular body of armed soldiers at an election of members to serve in parliament is a high infringement of the liberties of the subject, a manifest violation of the freedom of elections, and an open defiance of the laws and constitution of this kingdom." The persons concerned in this, having been ordered to attend the house, received on their knees a very severe reprimand from the speaker. Parl. Hist. ix. 326. Upon some occasion, the circumstances of which I do not recollect, Chief Justice Willis uttered some laudable sentiments as to the subordination of military power.

[371] Lord Hardwicke threw out the militia bill in 1756, thinking some of its clauses rather too republican, and, in fact, being adverse to the scheme. Parl. Hist. xv. 704; H. Walpole's Memoirs, ii. 45; Coxe's Memoirs of Lord Walpole, 450.

[372] By the act of 6 Anne, c. 7, all persons holding pensions from the Crown during pleasure were made incapable of sitting in the House of Commons; which was extended by 1 Geo. I. c. 56, to those who held them for any term of years. But the difficulty was to ascertain the fact; the government refusing information. Mr. Sandys, accordingly proposed a bill in 1730, by which every member of the Commons was to take an oath that he did not hold any such pension, and that, in case of accepting one, he would disclose it to the house within fourteen days. This was carried by a small majority through the Commons, but rejected in the other house; which happened again in 1734 and in 1740. Parl. Hist. viii. 789; ix. 369; xi. 510. The king, in an angry note to Lord Townshend, on the first occasion, calls it "this villainous bill." Coxe's Walpole, ii. 537, 673. A bill of the same gentleman to limit the number of placemen in the house had so far worse success, that it did not reach the Serbonian bog. Parl. Hist. xi. 328, Bishop Sherlock made a speech against the prevention of corrupt practices by the pension bill, which, whether justly or not, excited much indignation, and even gave rise to the proposal of a bill for putting an end to the translation of bishops. Id. viii. 847.

[373] 25 Geo. 2, c. 22. The king came very reluctantly into this measure: in the preceding session of 1742, Sandys, now become chancellor of the exchequer, had opposed it, though originally his own; alleging, in no very parliamentary manner, that the new ministry had not yet been able to remove his majesty's prejudices. Parl. Hist. xii. 896.

[374] Mr. Fox declared to the Duke of Newcastle, when the office of secretary of state, and what was called the management of the House of Commons, was offered to him, "that he never desired to touch a penny of the secret service money, or to know the disposition of it farther than was necessary to enable him to speak to the members without being ridiculous." Dodington's Diary, 15th March 1754. H. Walpole confirms this in nearly the same words. Mem. of Last Ten Years, i. 332.

[375] In Coxe's Memoirs of Sir R. Walpole, iii. 609, we have the draught, by that minister, of an intended vindication of himself after his retirement from office, in order to show the impossibility of misapplying public money, which, however, he does not show; and his elaborate account of the method by which payments are made out of the exchequer, though valuable in some respects, seems rather intended to lead aside the unpractised reader.

[376] This secret committee were checked at every step for want of sufficient powers. It is absurd to assert, like Mr. Coxe, that they advanced accusations which they could not prove, when the means of proof were withheld. Scrope and Paxton, the one secretary, the other solicitor, to the treasury, being examined about very large sums traced to their hands, and other matters, refused to answer questions that might criminate themselves; and a bill to indemnify evidence was lost in the upper house. Parl. Hist. xii. 625 et post.

[377] See vol. i. [254], [255].

[378] Parl. Hist. vi. 1265. Walpole says, in speaking for Steele, "the liberty of the press is unrestrained; how then shall a part of the legislature dare to punish that as a crime, which is not declared to be so by any law framed by the whole?"

[379] Vol. i. [p. 250].

[380] The instances are so numerous, that to select a few would perhaps give an inadequate notion of the vast extension which privilege received. In fact, hardly anything could be done disagreeable to a member, of which he might inform the house, and cause it to be punished.

[381] 12 Will. 3, ch. 3.

[382] Journals, 11th Feb. It had been originally proposed, that the member making the complaint should pay the party's costs and expenses, which was amended, I presume, in consequence of some doubt as to the power of the house to enforce it.

[383] 10 G. 3, c. 50.

[384] Resolved, That whatever ill consequences may arise from the so long deferring the supplies for the year's service, are to be attributed to the fatal counsel of putting off the meeting of a parliament so long, and to unnecessary delays of the House of Commons. Lords' Journals, 23rd June 1701. The Commons had previously come to a vote, that all the ill consequences which may at this time attend the delay of the supplies granted by the Commons for the preserving the public peace, and maintaining the balance of Europe, are to be imputed to those who, to procure an indemnity for their own enormous crimes, have used their utmost endeavours to make a breach between the two houses. Commons' Journals, June 20th.

[385] Journals, 8th May; Parl. Hist. v. 1250; Ralph, 947. This historian, who generally affects to take the popular side, inveighs against this petition, because the tories had a majority in the Commons. His partiality, arising out of a dislike to the king, is very manifest throughout the second volume. He is forced to admit afterwards, that the house disgusted the people by their votes on this occasion. P. 976.

[386] History of the Kentish Petition; Somers Tracts, xi. 242; Legion's Paper; Id. 264; Vindication of the Rights of the Commons (either by Harley or Sir Humphrey Mackworth); Id. 276. This contains in many respects constitutional principles; but the author holds very strong language about the right of petitioning. After quoting the statute of Charles II. against tumults on pretence of presenting petitions, he says: "By this statute it may be observed, that not only the number of persons is restrained, but the occasion also for which they may petition; which is for the alteration of matters established in church or state, for want whereof some inconvenience may arise to that county from which the petition shall be brought. For it is plain by the express words and meaning of that statute that the grievance or matter of the petition must arise in the same county as the petition itself. They may indeed petition the king for a parliament to redress their grievances; and they may petition that parliament to make one law that is advantageous, and repeal another that is prejudicial to the trade or interest of that county; but they have no power by this statute, nor by the constitution of the English government, to direct the parliament in the general proceedings concerning the whole kingdom; for the law declares that a general consultation of all the wise representatives of parliament is more for the safety of England than the hasty advice of a number of petitioners of a private county, of a grand jury, or of a few justices of the peace, who seldom have a true state of the case represented to them."—P. 313.

These are certainly what must appear in the present day very strange limitations of the subject's right to petition either house of parliament. But it is really true that such a right was not generally recognised, nor frequently exercised, in so large an extent as is now held unquestionable. We may search whole volumes of the journals, while the most animating topics were in discussion, without finding a single instance of such an interposition of the constituent with the representative body. In this particular case of the Kentish petition, the words in the resolution, that it tended to destroy the constitution of parliament and subvert the established government, could be founded on no pretence but its unusual interference with the counsels of the legislature. With this exception, I am not aware (stating this, however, with some diffidence) of any merely political petition before the Septennial bill in 1717, against which several were presented from corporate towns; one of which was rejected on account of language that the house thought indecent; and as to these it may be observed, that towns returning members to parliament had a particular concern in the measure before the house. They relate, however, no doubt, to general policy, and seem to establish a popular principle which stood on little authority. I do not of course include the petitions to the long parliament in 1640, nor one addressed to the Convention, in 1689, from the inhabitants of London and Westminster, pressing their declaration of William and Mary; both in times too critical to furnish regular precedents. But as the popular principles of government grew more established, the right of petitioning on general grounds seems to have been better recognised; and instances may be found, during the administration of Sir Robert Walpole, though still by no means frequent. Parl. Hist. xii. 119. The city of London presented a petition against the bill for naturalisation of the Jews, in 1753, as being derogatory to the Christian religion as well as detrimental to trade. Id. xiv. 1417. It caused, however, some animadversion; for Mr. Northey, in the debate next session on the proposal to repeal this bill, alluding to this very petition, and to the comments Mr. Pelham made on it, as "so like the famous Kentish petition that if they had been treated in the same manner it would have been what they deserved," observes in reply, that the "right of petitioning either the king or the parliament in a decent and submissive manner, and without any riotous appearance against anything they think may affect their religion and liberties, will never, I hope, be taken from the subject." Id. xv. 149; see also 376. And it is very remarkable that notwithstanding the violent clamour excited by that unfortunate statute, no petitions for its repeal are to be found in the journals. They are equally silent with regard to the marriage act, another topic of popular obloquy. Some petitions appear to have been presented against the bill for naturalisation of foreign protestants; but probably on the ground of its injurious effect on the parties themselves. The great multiplication of petitions on matters wholly unconnected with particular interests cannot, I believe, be traced higher than those for the abolition of the slave trade in 1787; though a few were presented for reform about the end of the American war, which would undoubtedly have been rejected with indignation in any earlier stage of our constitution. It may be remarked also that petitions against bills imposing duties are not received, probably on the principle that they are intended for the general interests, though affecting the parties who thus complain of them. Hatsell, iii. 200.

The convocation of public meetings for the debate of political questions, as preparatory to such addresses or petitions, is still less according to the practice and precedents of our ancestors; nor does it appear that the sheriffs or other magistrates are more invested with a right of convening or presiding in assemblies of this nature than any other persons; though, within the bounds of the public peace, it would not perhaps be contended that they have ever been unlawful. But that their origin can be distinctly traced higher than the year 1769, I am not prepared to assert. It will of course be understood, that this note is merely historical, and without reference to the expediency of that change in our constitutional theory which it illustrates.

[387] State Trials, xiv. 849.

[388] Parl. Hist. vi. 225 et post; State Trials, xiv. 695 et post.

[389] Parl. Hist. xiv. 888 et post, 1063; Walpole's Memoirs of the last Ten Years of George II., i. 15 et post.

[390] Journals, vii. 9th July 1725.

[391] Commons' Journals, 25th Oct. 1689.

[392] Id. Dec. 5.

[393] Parl. Hist. vii. 803.

[394] Lords' Journals, 10th Jan. 1702; Parl. Hist. vi. 21.

[395] Hargrave's Juridical Arguments, vol. i. p. 1, etc.

[396] State Trials, vi. 1369; 1 Modern Reports, 159.

[397] Id., xii. 822; T. Jones, Reports, 208.

[398] Journals, 10th, 12th, 19th July 1689.

[399] State Trials, xiv. 849.

[400] Id., viii. 30.

[401] This is very elaborately and dispassionately argued by Mr. Hargrave in his Juridical Arguments, above cited; also vol. ii. p. 183. "I understand it," he says, "to be clearly part of the law and custom of parliament that each house of parliament may inquire into and imprison for breaches of privilege." But this he thinks to be limited by law; and after allowing it clearly in cases of obstruction, arrest, assault, etc., on members, admits also that "the judicative power as to writing, speaking, or publishing, of gross reflections upon the whole parliament or upon either house, though perhaps originally questionable, seems now of too long a standing and of too much frequency in practice to be well counteracted." But after mentioning the opinions of the judges in Crosby's case, Mr. H. observes: "I am myself far from being convinced that commitment for contempts by a house of parliament, or by the highest court of judicature in Westminster Hall, either ought to be, or are thus wholly privileged from all examination and appeal."

[402] Mr. Justice Gould, in Crosby's case, as reported by Wilson, observes: "It is true this court did, in the instance alluded to by the counsel at the bar (Wilkes's case, 2 Wilson, 151), determine upon the privilege of parliament in the case of a libel; but then that privilege was promulged and known; it existed in records and law-books, and was allowed by parliament itself. But even in that case we now know that we were mistaken; for the House of Commons have since determined, that privilege does not extend to matters of libel." It appears, therefore, that Mr. Justice Gould thought a declaration of the House of Commons was better authority than a decision of the court of common pleas, as to a privilege which, as he says, existed in records and law-books.

[403] "I am far from subscribing to all the latitude of the doctrine of attachments for contempts of the king's courts of Westminster, especially the King's Bench, as it is sometimes stated, and it has been sometimes practised." Hargrave, ii. 213.

"The principle upon which attachments issue for libels on courts is of a more enlarged and important nature: it is to keep a blaze of glory around them, and to deter people from attempting to render them contemptible in the eyes of the people." Wilmot's Opinions and Judgments, p. 270. Yet the king, who seems as much entitled to this blaze of glory as his judges, is driven to the verdict of a jury before the most libellous insult on him can be punished.

[404] Hargrave, ubi supra.

[405] This effect of continual new statutes is well pointed out in a speech ascribed to Sir William Wyndham in 1734: "The learned gentleman spoke (he says) of the prerogative of the Crown, and asked us if it had lately been extended beyond the bounds prescribed to it by law. Sir, I will not say that there have been lately any attempts to extend it beyond the bounds prescribed by law; but I will say that these bounds have been of late so vastly enlarged that there seems to be no great occasion for any such attempt. What are the many penal laws made within these forty years, but so many extensions of the prerogative of the Crown, and as many diminutions of the liberty of the subject? And whatever the necessity was that brought us into the enacting of such laws, it was a fatal necessity; it has greatly added to the power of the Crown, and particular care ought to be taken not to throw any more weight into that scale." Parl. Hist. ix. 463.

Among the modern statutes which have strengthened the hands of the executive power, we should mention the riot act (1 Geo. I. stat. 2, c. 5), whereby all persons tumultuously assembled to the disturbance of the public peace, and not dispersing within one hour after proclamation made by a single magistrate, are made guilty of a capital felony. I am by no means controverting the expediency of this law; but, especially when combined with the aid of a military force, it is surely a compensation for much that may seem to have been thrown into the popular scale.

[406] 9 Geo. 2, c. 35, sect. 10, 13; Parl. Hist. ix. 1229. I quote this as I find it: but probably the expressions are not quite correct; for the reasoning is not so.

[407] Coxe's Walpole, i. 296; H. Walpole's Works, iv. 476. The former, however, seems to rest on H. Walpole's verbal communication, whose want of accuracy, or veracity, or both, is so palpable that no great stress can be laid on his testimony. I believe, however, that the fact of George I. and his minister conversing in Latin may be proved on other authority.

[408] H. Walpole's Memoirs of the last Ten Years; Lord Waldegrave's Memoirs. In this well written little book, the character of George II. in reference to his constitutional position, is thus delicately drawn: "He has more knowledge of foreign affairs than most of his ministers, and has good general notions of the constitution, strength, and interest of this country; but, being past thirty when the Hanover succession took place, and having since experienced the violence of party, the injustice of popular clamour, the corruption of parliaments, and the selfish motives of pretended patriots, it is not surprising that he should have contracted some prejudices in favour of those governments where the royal authority is under less restraint. Yet prudence has so far prevailed over these prejudices, that they have never influenced his conduct. On the contrary, many laws have been enacted in favour of public liberty; and in the course of a long reign there has not been a single attempt to extend the prerogative of the Crown beyond its proper limits. He has as much personal bravery as any man, though his political courage seems somewhat problematical; however, it is a fault on the right side; for had he always been as firm and undaunted in the closet as he showed himself at Oudenarde and Dettingen, he might not have proved quite so good a king in this limited monarchy,"—P. 5. This was written in 1757.

The real tories, those I mean who adhered to the principles expressed by that name, thought the constitutional prerogative of the Crown impaired by a conspiracy of its servants. Their notions are expressed in some "Letters on the English Nation," published about 1756, under the name of Battista Angeloni, by Dr. Shebbeare, once a jacobite, and still so bitter an enemy of William III. and George I. that he stood in the pillory, not long afterwards, for a libel on those princes (among other things); on which Horace Walpole justly animadverts, as a stretch of the law by Lord Mansfield destructive of all historical truth. Memoirs of the last Ten Years, ii. 328. Shebbeare, however, was afterwards pensioned, along with Johnson, by Lord Bute, and at the time when these letters were written, may possibly have been in the Leicester House interest. Certain it is, that the self-interested cabal who belonged to that little court endeavoured too successfully to persuade its chief and her son that the Crown was reduced to a state of vassalage, from which it ought to be emancipated; and the government of the Duke of Newcastle, as strong in party connection as it was contemptible in ability and reputation, afforded them no bad argument. The consequences are well known, but do not enter into the plan of this work.

[409] Many proofs of this occur in the correspondence published by Mr. Coxe. Thus Horace Walpole writing to his brother Sir Robert, in 1739, says: "King William had no other object but the liberties and balance of Europe; but, good God! what is the case now? I will tell you in confidence; little, low, partial, electoral notions are able to stop or confound the best conducted project for the public." Memoirs of Sir R. Walpole, iii. 535. The Walpoles had, some years before, disapproved the policy of Lord Townshend on account of his favouring the king's Hanoverian prejudices. Id. i. 334. And, in the preceding reign, both these whig leaders were extremely disgusted with the Germanism and continual absence of George I. (Id. ii. 116, 297), though first Townshend, and afterwards Walpole, according to the necessity, or supposed necessity, which controls statesmen (that is, the fear of losing their places), became in appearance the passive instruments of royal pleasure.

It is now, however, known that George II. had been induced by Walpole to come into a scheme, by which Hanover, after his decease, was to be separated from England. It stands on the indisputable authority of Speaker Onslow. "A little while before Sir Robert Walpole's fall (and as a popular act to save himself, for he went very unwillingly out of his offices and power), he took me one day aside, and said, 'What will you say, speaker, if this hand of mine shall bring a message from the king to the House of Commons, declaring his consent to having any of his family, after his death, to be made, by act of parliament, incapable of inheriting and enjoying the crown, and possessing the electoral dominions at the same time?' My answer was, 'Sir, it will be as a message from heaven.' He replied, 'It will be done.' But it was not done; and I have good reason to believe, it would have been opposed, and rejected at that time, because it came from him, and by the means of those who had always been most clamorous for it; and thus perhaps the opportunity was lost: when will it come again? It was said that the prince at that juncture would have consented to it, if he could have had the credit and popularity of the measure, and that some of his friends were to have moved it in parliament, but that the design at St. James's prevented it. Notwithstanding all this, I have had some thoughts that neither court ever really intended the thing itself; but that it came on and went off, by a jealousy of each other in it, and that both were equally pleased that it did so, from an equal fondness (very natural) for their own native country." Notes on Burnet (iv. 490, Oxf. edit.). This story has been told before, but not in such a manner as to preclude doubt of its authenticity.

[410] A bill was brought in for this purpose in 1712, which Swift, in his History of the Last Four Years, who never printed anything with his name, naturally blames. It miscarried, probably on account of this provision. Parl. Hist. vi. 1141. But the queen, on opening the session, in April 1713, recommended some new law to check the licentiousness of the press. Id. 1173. Nothing, however, was done in consequence.

[411] Bolingbroke's letter to the Examiner, in 1710, excited so much attention that it was answered by Lord Cowper, then chancellor, in a letter to the Tatler (Somers Tracts, xiii. 75), where Sir Walter Scott justly observes, that the fact of two such statesmen becoming the correspondents of periodical publications shows the influence they must have acquired over the public mind.

[412] It was resolved, nem. con., Feb. 26th, 1729, That it is an indignity to, and a breach of the privilege of, this house, for any person to presume to give, in written or printed newspapers, any account or minutes of the debates, or other proceedings of this house or of any committee thereof; and that upon discovery of the authors, etc., this house will proceed against the offenders with the utmost severity. Parl. Hist. viii. 683. There are former resolutions to the same effect. The speaker having himself brought the subject under consideration some years afterwards, in 1738, the resolution was repeated in nearly the same words, but after a debate wherein, though no one undertook to defend the practice, the danger of impairing the liberty of the press was more insisted upon than would formerly have been usual; and Sir Robert Walpole took credit to himself, justly enough, for respecting it more than his predecessors. Id. x. 800; Coxe's Walpole, i. 572. Edward Cave, the well-known editor of the Gentleman's Magazine, and the publisher of another magazine, was brought to the bar, April 30th, 1747, for publishing the house's debates; when the former denied that he retained any person in pay to make the speeches, and after expressing his contrition was discharged on payment of fees. Id. xiv. 57.

[413] Malthus, Principles of Political Economy (1820), p. 279.

[414] Macpherson (or Anderson), Hist. of Commerce; Chalmers's Estimate of Strength of Great Britain; Sinclair's Hist. of Revenue, cum multis aliis.

[415] Tindal, apud Parl. Hist. xiv. 66. I have read the same in other books, but know not at present where to search for the passages. Hogarth's pictures of the election are evidence to the corruption in his time, so also are some of Smollett's novels. Addison, Swift, and Pope would not have neglected to lash this vice if it had been glaring in their age; which shows that the change took place about the time I have mentioned.

[416] 9 Anne, c. 5. A bill for this purpose had passed the Commons in 1696; the city of London and several other places petitioning against it. Journals, Nov. 21, etc. The house refused to let some of these petitions be read; I suppose on the ground that they related to a matter of general policy. These towns, however, had a very fair pretext for alleging that they were interested; and in fact a rider was added to the bill, that any merchant might serve for a place where he should be himself a voter, on making oath that he was worth £5000. Id. Dec. 19.

[417] 33 G. II. c. 20.

[418] Chalmers's Caledonia, vol. i. passim.

[419] Id. 500 et post; Dalrymple's Annals of Scotland, 28, 30, etc.

[420] Chalmers, 741; Wight's Law of Election in Scotland, 28.

[421] Id. 25; Dalrymple's Annals, i. 139, 235, 283; ii. 55, 116; Chalmers, 743. Wight thinks they might perhaps only have had a voice in the imposition of taxes.

[422] Dalrymple, ii. 241; Wight, 26.

[423] Statutes of Scotland, 1427; Pinkerton's History of Scotland, i. 120; Wight, 30.

[424] Dalrymple, ii. 261; Stuart on Public Law of Scotland, 344; Robertson's History of Scotland, i. 84.

[425] Wight, 62, 65.

[426] Id. 69.

[427] Pinkerton, i. 373.

[428] Id. 360.

[429] Id. 372.

[430] Pinkerton, ii. 53.

[431] In a statute of James II. (1440) "the three estates conclude that it is speedful that our sovereign lord the king ride throughout the realm incontinent as shall be seen to the council where any rebellion, slaughter, burning, robbery, outrage, or theft has happened," etc. Statutes of Scotland, ii. 32. Pinkerton (i. 192), leaving out the words in italics, has argued on false premises. "In this singular decree we find the legislative body regarding the king in the modern light of a chief magistrate, bound equally with the meanest subject to obedience to the laws," etc. It is evident that the estates spoke in this instance as counsellors, not as legislators. This is merely an oversight of a very well-informed historian, who is by no means in the trammels of any political theory.

A remarkable expression, however, is found in a statute of the same king, in 1450; which enacts that any man rising in war against the king, or receiving such as have committed treason, or holding houses against the king, or assaulting castles or places where the king's power shall happen to be, without the consent of the three estates, shall be punished as a traitor. Pinkerton i. 213. I am inclined to think that the legislators had in view the possible recurrence of what had very lately happened, that an ambitious cabal might get the king's person into their power. The peculiar circumstances of Scotland are to be taken into account when we consider these statutes, which are not to be looked at as mere insulated texts.

[432] Pinkerton, i. 234.

[433] Statutes of Scotland, ii. 177.

[434] Pinkerton, ii. 266.

[435] Pinkerton, ii. 400; Laing, iii. 32.

[436] Kaims's Law Tracts; Pinkerton, i. 158 et alibi; Stuart on Public Law of Scotland.

[437] Kaims's Law Tracts; Pinkerton's Hist. of Scotland, i. 117, 237, 388, ii. 313; Robertson, i. 43; Stuart on Law of Scotland.

[438] Robertson, i. 149; M'Crie's Life of Knox, p. 15. At least one half of the wealth of Scotland was in the hands of the clergy, chiefly of a few individuals. Ibid.

[439] I have read a good deal on this celebrated controversy; but, where so much is disputed, it is not easy to form an opinion on every point. But, upon the whole, I think there are only two hypotheses that can be advanced with any colour of reason. The first is, that the murder of Darnley was projected by Bothwell, Maitland, and some others, without the queen's express knowledge, but with a reliance on her passion for the former, which would lead her both to shelter him from punishment, and to raise him to her bed; and that, in both respects, this expectation was fully realised by a criminal connivance at the escape of one whom she must believe to have been concerned in her husband's death, and by a still more infamous marriage with him. This, it appears to me, is a conclusion that may be drawn by reasoning on admitted facts, according to the common rules of presumptive evidence. The second supposition is, that she had given a previous consent to the assassination. This is rendered probable by several circumstances, and especially by the famous letters and sonnets, the genuineness of which has been so warmly disputed. I must confess that they seem to me authentic, and that Mr. Laing's dissertation on the murder of Darnley has rendered Mary's innocence, even as to participation in that crime, an untenable proposition. No one of any weight, I believe, has asserted it since his time except Dr. Lingard, who manages the evidence with his usual adroitness, but by admitting the general authenticity of the letters, qualified by a mere conjecture of interpolations, has given up what his predecessors deemed the very key of the citadel.

I shall dismiss a subject so foreign to my purpose, with remarking a fallacy which affects almost the whole argument of Mary's most strenuous advocates. They seem to fancy that, if the Earls of Murray and Morton, and Secretary Maitland of Lethington, can be proved to have been concerned in Darnley's murder, the queen herself is at once absolved. But it is generally agreed that Maitland was one of those who conspired with Bothwell for this purpose; and Morton, if he were not absolutely consenting, was by his own acknowledgment at his execution apprised of the conspiracy. With respect to Murray indeed there is not a shadow of evidence, nor had he any probable motive to second Bothwell's schemes; but, even if his participation were presumed, it would not alter in the slightest degree the proofs as to the queen.

[440] Spottiswood's Church History, 152; M'Crie's Life of Knox, ii. 6; Life of Melville, i. 143; Robertson's History of Scotland; Cook's History of the Reformation in Scotland. These three modern writers leave, apparently, little to require as to this important period of history; the first with an intenseness of sympathy that enhances our interest, though it may not always command our approbation; the two last with a cooler and more philosophical impartiality.

[441] M'Crie's Life of Knox, ii. 197 et alibi; Cook, iii. 308. According to Robertson, i. 291, the whole revenue of the protestant church, at least in Mary's reign, was about 24,000 pounds Scots, which seems almost incredible.

[442] M'Crie's Life of Melville, i. 287, 296. It is impossible to think without respect of this most powerful writer, before whom there are few living controversialists that would not tremble; but his presbyterian Hildebrandism is a little remarkable in this age.

[443] M'Crie's Life of Melville; Robertson; Spottiswood.

[444] Spottiswood; Robertson; M'Crie.

[445] M'Crie's Life of Melville, ii. 378; Laing's History of Scotland, iii. 20, 35, 42, 62.

[446] Laing, 74, 89.

[447] Wight, 69 et post.

[448] Statutes of Scotland, vol. ii. p. 8; Pinkerton, i. 115; Laing, iii. 117.

[449] Laing, ibid.

[450] Arnot's Criminal Trials, p. 122.

[451] The Gowrie conspiracy is well known to be one of the most difficult problems in history. Arnot has given a very good account of it (p. 20), and shown its truth, which could not reasonably be questioned, whatever motive we may assign for it. He has laid stress on Logan's letters, which appear to have been unaccountably slighted by some writers. I have long had a suspicion, founded on these letters, that the Earl of Bothwell, a daring man of desperate fortunes, was in some manner concerned in the plot, of which the Earl of Gowrie and his brother were the instruments.

[452] Arnot's Criminal Trials, p. 70.

[453] Arnot, pp. 67, 329; State Trials, ii. 884. The prisoner was told that he was not charged for saying mass, nor for seducing the people to popery, nor for anything that concerned his conscience; but for declining the king's authority, and maintaining treasonable opinions, as the statutes libelled on made it treason not to answer the king or his council in any matter which should be demanded.

It was one of the most monstrous iniquities of a monstrous jurisprudence, the Scots criminal law, to debar a prisoner from any defence inconsistent with the indictment; that is, he might deny a fact, but was not permitted to assert that, being true, it did not warrant the conclusion of guilt. Arnot, 354.

[454] Laing, iv. 20; Kirkton, p. 141. "Whoso shall compare," he says, "this set of bishops with the old bishops established in the year 1612, shall find that these were but a sort of pigmies compared with our new bishops."

[455] Laing, iv. 32. Kirkton says 300. P. 149. These were what were called the young ministers, those who had entered the church since 1649. They might have kept their cures by acknowledging the authority of bishops.

[456] Laing, iv. 116.

[457] Life of James II., i. 710.

[458] Cloud of Witnesses, passim; De Foe's Hist. of Church of Scotland; Kirkton; Laing; Scott's notes in Minstrelsy of Scottish Border, etc., etc.

[459] The practice observed in summoning or dissolving the great national assembly of the church of Scotland, which, according to the presbyterian theory, can only be done by its own authority, is rather amusing. "The moderator dissolves the assembly in the name of the Lord Jesus Christ, the head of the church; and, by the same authority, appoints another to meet on a certain day of the ensuing year. The lord high commissioner then dissolves the assembly in the name of the king, and appoints another to meet on the same day." Arnot's Hist. of Edinburgh, p. 269. I am inclined to suspect, but with no very certain recollection of what I have been told, that Arnot has misplaced the order in which this is done, and that the lord commissioner is the first to speak. In the course of debate, however, no regard is paid to him, all speeches being addressed to the moderator.

[460] The king's instructions by no means warrant the execution, especially with all its circumstances of cruelty, but they contain one unfortunate sentence: "If Maclean [sic], of Glencoe, and that tribe can be well separated from the rest, it will be a proper vindication of the public justice to extirpate that seat of thieves." This was written, it is to be remembered, while they were exposed to the penalties of the law for the rebellion. But the massacre would never have been perpetrated, if Lord Breadalbane and the master of Stair, two of the worst men in Scotland, had not used the foulest arts to effect it. It is an apparent great reproach to the government of William, that they escaped with impunity; but political necessity bears down justice and honour. Laing, iv. 246; Carstares' State Papers.

[461] Those who took the oaths were allowed to continue in their churches without compliance with the presbyterian discipline, and many more who not only refused the oaths but prayed openly for James and his family. Carstares, p. 40. But in 1693 an act for settling the peace and quiet of the church ordains, that no person be admitted or continued to be a minister or preacher unless he have taken the oath of allegiance, and subscribed the assurance that he held the king to be de facto et de jure, and also the confession of faith; and that he owns and acknowledges presbyterian church-government to be the only government of this church, and that he will submit thereto and concur therewith, and will never endeavour, directly or indirectly, the prejudice or subversion thereof. Id. 715; Laing, iv. 255.

This act seems not to have been strictly insisted upon; and the episcopal clergy, though their advocates did not forget to raise a cry of persecution, which was believed in England, are said to have been treated with singular favour. De Foe challenges them to show any one minister that ever was deposed for not acknowledging the church, if at the same time he offered to acknowledge the government and take the oaths; and says they have been often challenged on this head. Hist. of Church of Scotland, p. 319. In fact, a statute was passed in 1695, which confirmed all ministers who would qualify themselves by taking the oaths: and no less than 116 (according to Laing, iv. 259) did so continue; nay, De Foe reckons 165 at the time of the union. P. 320.

The rigid presbyterians inveighed against any toleration, as much as they did against the king's authority over their own church. But the government paid little attention to their bigotry; besides the above-mentioned episcopal clergymen, those who seceded from the church, though universally jacobites, and most dangerously so, were indulged with meeting-houses in all towns; and by an act of the queen (10 Anne, c. 7) obtained a full toleration, on condition of praying for the royal family, with which they never complied. It was thought necessary to put them under some fresh restrictions in 1748, their zeal for the Pretender being notorious and universal, by an act 21 Geo. II., c. 34; which has very properly been repealed after the motive for it had wholly ceased, and even at first was hardly reconcilable with the general principles of religious liberty; though it ill becomes those to censure it who vindicate the penal laws of Elizabeth against popery.

[462] Archbishop Tenison said, in the debates on the union, he thought the narrow notions of all churches had been their ruin, and that he believed the church of Scotland to be as true a protestant church as the church of England, though he could not say it was as perfect. Carstares, 759. This sort of language was encouraging; but the exclusive doctrine, or jus divinum, was sure to retain many advocates, and has always done so. Fortunately for Great Britain, it has not had the slightest effect on the laity in modern times.

[463] Sir James Ware's Antiquities of Ireland; Leland's Hist. of Ireland (Introduction); Ledwich's Dissertations.

[464] Id. Auct.: also Davis's Reports, 29, and his "Discovery of the true Causes why Ireland was never entirely subdued till his Majesty's happy Reign," 169. Sir John Davis, author of the philosophical poem, Γνωθι Σεαθτον was chief-justice of Ireland under James I. The tract just quoted is well known as a concise and luminous exposition of the history of that country from the English invasion.

[465] Ware; Leland; Ledwich; Davis's "Discovery," ibid.; Reports, 49. It is remarkable that Davis seems to have been aware of an analogy between the custom of Ireland and Wales, and yet that he only quotes the statute of Rutland (12 Edw. I.), which by itself does not prove it. It is, however, proved, if I understand the passage, by one of the Leges Walliæ published by Wotton, p. 139. A gavel or partition was made on the death of every member of a family for three generations, after which none could be enforced. But these parceners were to be all in the same degree; so that nephews could not compel their uncle to a partition, but must wait till his death, when they were to be put on an equality with their cousins; and this, I suppose, is meant by the expression in the statute of Rutland, "quod hæreditates remaneant partibiles inter consimiles hæredes."

[466] Leland seems to favour the authenticity of the supposed Brehon laws published by Vallancey. Introduction, 29. The style is said to be very distinguishable from the Irish of the twelfth or thirteenth century, and the laws themselves to have no allusion to the settlement of foreigners in Ireland, or to coined money; whence some ascribe them to the eighth century. On the other hand, Ledwich proves that some parts must be later than the tenth century. Dissertations, i. 270. And others hold them to be not older than the thirteenth. Campbell's Historical Sketch of Ireland, 41. It is also maintained that they are very unfaithfully translated. But, when we find the Anglo-Saxon and Norman usages, relief, aid, wardship, trial by jury (and that unanimous), and a sort of correspondence in the ranks of society with those of England (which all we read elsewhere of the ancient Irish seems to contradict), it is impossible to resist the suspicion that they are either extremely interpolated, or were compiled in a late age, and among some of the septs who had most intercourse with the English. We know that the degenerate colonists, such as the Earls of Desmond, adopted the Brehon law in their territories; but this would probably be with some admixture of that to which they had been used.

[467] "The first pile of lime and stone that ever was in Ireland was the castle of Tuam, built in 1161 by Roderic O'Connor, the monarch." Introduction to Cox's History of Ireland. I do not find that any later writer controverts this, so far as the aboriginal Irish are concerned; but doubtless the Norwegian Ostmen had stone churches, and there seems little doubt that some at least of the famous round towers so common in Ireland were erected by them. See Ledwich's Dissertations, vii. 143; and the book called Grose's Antiquities of Ireland, also written by Ledwich. Piles of stone without mortar are excluded by Cox's expression. In fact, the Irish had very few stone houses, or even regular villages and towns, before the time of James I. Davis, 170.

[468] Ledwich, i. 395.

[469] Antiquities of Ireland, ii. 76.

[470] Ledwich, i. 260.

[471] Ware, ii. 74; Davis's Discovery, 174; Spenser's State of Ireland, 390.

[472] Davis, 135.

[473] Leland, 80 et post; Davis, 100.

[474] 4 Inst. 349; Leland, 203; Harris's Hibernica, ii. 14.

[475] These counties are Dublin, Kildare, Meath (including Westmeath), Louth, Carlow, Wexford, Kilkenny, Waterford, Cork, Tipperary, Kerry, and Limerick. In the reign of Edward I. we find sheriffs also of Connaught and Roscommon. Leland, i. 19. Thus, except the northern province and some of the central districts, all Ireland was shire-ground, and subject to the Crown in the thirteenth century, however it might fall away in the two next. Those who write confusedly about this subject, pretend that the authority of the king at no time extended beyond the pale; whereas that name was not known, I believe, till the fifteenth century. Under the great Earl of Pembroke, who died in 1219, the whole island was perhaps nearly as much reduced under obedience as in the reign of Elizabeth. Leland, 205.

[476] Leland, 170.

[477] Davis, 140. William Marischal, Earl of Pembroke, who married the daughter of Earl Strongbow, left five sons and five daughters; the first all died without issue.

[478] Davis, 147; Leland, 291.

[479] Id. 194, 209.

[480] Leland, 225.

[481] Davis, 100, 109. He quotes the following record from an assize at Waterford, in the 4th of Edward II. (1311), which may be extracted, as briefly illustrating the state of law in Ireland better than any general positions. "Quod Robertus le Wayleys rectatus de morte Johannis filii Ivor MacGillemory, felonicè per ipsum interfecti, etc. Venit et bene cognovit quod prædictum Johannem interfecit; dicit tamen quod per ejus interfectionem feloniam committere non potuit, quia dicit, quod prædictus Johannes fuit purus Hibernicus, et non de libero sanguine, etc. Et cum dominus dicti Johannis, cujus Hibernicus idem Johannes fuit, die quo interfectus fuit, solutionem pro ipso Johanne Hibernico suo sic interfecto petere voluerit, ipse Robertus paratus erit ad respondendum de solutione prædictâ prout justitia suadebit. Et super hoc venit quidam Johannes le Poer, et dicit pro domino rege, quod prædictus Johannes filius Ivor Mac-Gillemory, et antecessores sui de cognomine prædicto a tempore quo dominus Henricus filius imperatricis, quondam dominus Hiberniæ, tritavus domini regis nunc, fuit in Hiberniâ, legem Anglicanam in Hiberniâ usque ad hanc diem habere, et secundum ipsam legem judicari et deduci debent." We have here both the general rule, that the death of an Irishman was only punishable by a composition to his lord, and the exception in behalf of those natives who had conformed to the English law.

[482] Davis, 104; Leland, 82. It was necessary to plead in bar of an action, that the plaintiff was Hibernicus, et non de quinque sanguinibus.

[483] Davis, 106. "If I should collect out of the records all the charters of this kind, I should make a volume thereof." They began as early as the reign of Henry III. Leland, 225.

[484] Leland, 243.

[485] Id. 289.

[486] "There were two other customs proper and peculiar to the Irishry, which, being the cause of many strong combinations and factions, do tend to the utter ruin of a commonwealth. The one was fostering, the other gossipred; both which have ever been of greater estimation among this people than with any other nation in the Christian world. For fostering I did never hear or read that it was in that use or reputation in any other country, barbarous or civil, as it hath been, and yet is, in Ireland, where they put away all their children to fosterers; the potent and rich men selling, the meaner sort, buying, the alterage and nursing of their children; and the reason is, because in the opinion of this people, fostering hath always been a stronger alliance than blood; and the foster-children do love and are beloved of their foster-fathers and their sept, more than of their own natural parents and kindred, and do participate of their means more frankly, and do adhere to them in all fortunes, with more affection and constancy. The like may be said of gossipred or compaternity, which though by the canon law it be a spiritual affinity, and a juror that was gossip to either of the parties might in former times have been challenged, as not indifferent, by our law, yet there was no nation under the sun that ever made so religious an account of it as the Irish," Davis, 179.

[487] "For that now there is no diversity in array between the English marchers and the Irish enemies, and so by colour of the English marchers, the Irish enemies do come from day to day into the English counties as English marchers, and do rob and kill by the highways, and destroy the common people by lodging upon them in the nights, and also do kill the husbands in the nights and do take their goods to the Irish men; wherefore it is ordained and agreed, that no manner man that will be taken for an Englishman shall have no beard above his mouth; that is to say, that he have no hairs upon his upper lip, so that the said lip be once at least shaven every fortnight, or of equal growth with the nether lip. And if any man be found among the English contrary hereunto, that then it shall be lawful to every man to take them and their goods as Irish enemies, and to ransom them as Irish enemies." Irish Statutes, 25 H. 6, c. 4.

[488] Davis, 152, 182; Leland, i. 256, etc.; Ware, ii. 58.

[489] Leland, 253.

[490] Cox's Hist. of Ireland, 117, 120.

[491] Id. 125, 129; Leland, 313.

[492] Irish Statutes.

[493] Davis, 174, 189; Leland, 281. Maurice Fitz-Thomas, Earl of Desmond, was the first of the English, according to Ware, ii. 76, who imposed the exaction of coyne and livery.

[494] Irish Statutes; Davis, 202; Cox; Leland.

[495] Leland, i. 278, 296, 324; Davis, 152, 197.

[496] Leland, 342. The native chieftains who came to Dublin are said to have been seventy-five in number; but the insolence of the courtiers, who ridiculed an unusual dress and appearance, disgusted them.

[497] Davis, 193.

[498] Leland, ii. 822 et post; Davis, 199, 229, 236; Holingshed's Chronicles of Ireland, p. 4. Finglas, a baron of the exchequer in the reign of Henry VIII., in his Breviate of Ireland, from which Davis has taken great part of his materials, says expressly, that, by the disobedience of the Geraldines and Butlers, and their Irish connections, "the whole land is now of Irish rule, except the little English pale, within the counties of Dublin and Meath, and Uriel [Louth], which pass not thirty or forty miles in compass." The English were also expelled from Munster, except the walled towns. The king had no profit out of Ulster, but the manor of Carlingford, nor any in Connaught. This treatise, written about 1530, is printed in Harris's Hibernica. The proofs that, in this age, the English law and government were confined to the four shires, are abundant. It is even mentioned in a statute, 13 H. 8, c. 2.

[499] Irish Statutes; Davis, 230; Leland, ii. 102.

[500] Leland.

[501] Irish Statutes, 33 H. 8, c. 1.

[502] Ibid. 28 H. 8, c. 15, 28. The latter act prohibits intermarriage or fostering with the Irish; which had indeed been previously restrained by other statutes. In one passed five years afterwards, it is recited that "the king's English subjects, by reason that they are inhabited in so little compass or circuit, and restrained by statute to marry with the Irish nation, and therefore of necessity must marry themselves together, so that in effect they all for the most part must be allied together; and therefore it is enacted, that consanguinity or affinity beyond the fourth degree shall be no cause of challenge on a jury." 33 H. 8, c. 4. These laws were for many years of little avail, so far at least as they were meant to extend beyond the pale. Spenser's State of Ireland, p. 384 et post.

[503] Leland, ii. 178, 184.

[504] Leland, ii. 189, 211; 3 & 4 P. and M. c. 1 and 2. Meath had been divided into two shires, by separating the western part. 34 H. 8, c. 1. "Forasmuch as the shire of Methe is great and large in circuit, and the west part thereof laid about or beset with divers of the king's rebels." Baron Finglas says, "Half Meath has not obeyed the king's laws these one hundred years or more." Breviate of Ireland, apud Harris, p. 85.

[505] Leland, ii. 158.

[506] Leland, 224; Irish Statutes, 2 Eliz.

[507] Leland gives several instances of breach of faith in the government. A little tract, called a "Brief Declaration of the Government of Ireland," written by Captain Lee in 1594, and published in Desiderata Curiosa Hibernica, vol. i., censures the two last deputies (Grey and Fitzwilliams) for their ill usage of the Irish, and unfolds the despotic character of the English government. "The cause they (the lords of the north) have to stand upon those terms, and to seek for better assurance, is the harsh practices used against others, by those who have been placed in authority to protect men for your majesty's service, which they have greatly abused in this sort. They have drawn unto them by protection three or four hundred of the country people, under colour to do your majesty service, and brought them to a place of meeting, where your garrison soldiers were appointed to be, who have there most dishonourably put them all to the sword; and this hath been by the consent and practice of the lord deputy for the time being. If this be a good course to draw those savage people to the state to do your majesty service, and not rather to enforce them to stand on their guard, I leave to your majesty."—P. 90. He goes on to enumerate more cases of hardship and tyranny; many being arraigned and convicted of treason on slight evidence; many assaulted and killed by the sheriffs on commissions of rebellion; others imprisoned and kept in irons; among others, a youth, the heir of a great estate. He certainly praises Tyrone more than, from subsequent events, we should think just, which may be thought to throw some suspicion on his own loyalty; yet he seems to have been a protestant, and in 1594 the views of Tyrone were ambiguous, so that Captain Lee may have been deceived.

[508] Sidney Papers, i. 20.

[509] Id. 24.

[510] Sidney Papers, i. 29. Spenser descants on the lawless violence of the superior Irish; and imputes, I believe with much justice, a great part of their crimes to his own brethren, if they might claim so proud a title, the bards: "whomsoever they find to be most licentious of life, most bold and lawless in his doings, most dangerous and desperate in all parts of disobedience and rebellious disposition, him they set up and glorify in their rhymes, him they praise to the people, and to young men make an example to follow."—P. 394.

[511] Holingshed, 460.

[512] Leland, 287; Spenser's Account of Ireland, p. 430 (vol. viii. of Todd's edition, 1805). Grey is the Arthegal of the Faery Queen, the representative of the virtue of justice in that allegory, attended by Talus with his iron flail, which indeed was unsparingly employed to crush rebellion. Grey's severity was signalised in putting to death seven hundred Spaniards who had surrendered at discretion in the fort of Smerwick. Though this might be justified by the strict laws of war (Philip not being a declared enemy) it was one of those extremities which justly revolt the common feelings of mankind. The queen is said to have been much displeased at it. Leland, 283. Spenser undertakes the defence of his patron Grey. State of Ireland, p. 434.

[513] Leland, 247, 293. An act had passed (II Eliz. c. 9) for dividing the whole island into shire-ground, appointing sheriffs, justices of the peace, etc.; which, however, was not completed.

[514] Leland, 305. Their conduct provoked an insurrection both in Connaught and Ulster. Spenser, who shows always a bias towards the most rigorous policy, does injustice to Perrott." He did tread down and disgrace all the English, and set up and countenance the Irish all that he could."—P. 437. This has in all ages been the language, when they have been placed on an equality, or anything approaching to an equality, with their fellow subjects.

[515] Leland, 248.

[516] Holingshed's Chronicles of Ireland, 342. This part is written by Hooker himself. Leland, 240; Irish Statutes, 11 Eliz.

[517] Sidney Papers, i. 153.

[518] Id. 179.

[519] Sidney Papers, 84, 117, etc., to 236; Holingshed, 389; Leland, 261. Sidney was much disappointed at the queen's want of firmness; but it is plain by the correspondence that Walsingham also thought he had gone too far. P. 192. The sum required seems to have been reasonable, about £2000 a year from the five shires of the pale; and, if they had not been stubborn, he thought all Munster also, except the Desmond territories, would have submitted to the payment. P. 183. "I have great cause," he writes, "to mistrust the fidelity of the greatest number of the people of this country's birth of all degrees; they be papists, as I may well term them, body and soul. For not only in matter of religion they be Romish, but for government they will change, to be under a prince of their own superstition. Since your highness' reign the papists never showed such boldness as now they do."—P. 184. This, however, hardly tallies with what he says afterwards (p. 208): "I do believe, for far the greatest number of the inhabitants of the English pale, her highness hath as true and faithful subjects as any she hath subject to the Crown;" unless the former passage refer chiefly to those without the pale, who in fact were exclusively concerned in the rebellions of this reign.

[520] "The church is now so spoiled," says Sir Henry Sidney in 1576, "as well by the ruin of the temples, as the dissipation and embezzling of the patrimony, and most of all for want of sufficient ministers, as so deformed and overthrown a church there is not, I am sure, in any region where Christ is professed." Sidney Papers, i. 109. In the diocese of Meath, being the best inhabited country of all the realm, out of 224 parish churches, 105 were impropriate having only curates, of whom but eighteen could speak English, the rest being Irish rogues, who used to be papists; fifty-two other churches had vicars, and fifty-two more were in better state than the rest, yet far from well. Id. 112. Spenser gives a bad character of the protestant clergy. P. 412.

An act was passed (12 Eliz. c. 1) for erecting free schools in every diocese, under English masters; the ordinary paying one-third of the salary, and the clergy the rest. This, however, must have been nearly impracticable. Another act (13 Eliz. c. 4) enables the Archbishop of Armagh to grant leases of his lands out of the pale for a hundred years without assent of the dean and chapter, to persons of English birth, "or of the English and civil nation, born in this realm of Ireland," at the rent of 4d. an acre. It recites the chapter to be "except a very few of them, both by nation, education, and custom, Irish, Irishly affectioned, and small hopes of their conformities or assent into any such devices as would tend to the placing of any such number of civil people there, to the disadvantage or bridling of the Irish." In these northern parts, the English and protestant interests had so little influence that the pope conferred three bishoprics, Derry, Clogher, and Raphoe, throughout the reign of Elizabeth. Davis, 254; Leland, ii. 248. What is more remarkable is, that two of these prelates were summoned to parliament in 1585 (Id. 295); the first in which some Irish were returned among the Commons.

The reputation of the protestant church continued to be little better in the reign of Charles I., though its revenues were much improved. Strafford gives the clergy a very bad character in writing to Laud. Vol. i. 187. And Burnet's Life of Bedell, transcribed chiefly from a contemporary memoir, gives a detailed account of that bishop's diocese (Kilmore), which will take off any surprise that might be felt at the slow progress of the reformation. He had about fifteen protestant clergy, but all English, unable to speak the tongue of the people, or to perform any divine offices, or converse with them, "which is no small cause of the continuance of the people in popery still."—P. 47. The bishop observed, says his biographer, "with much regret, that the English had all along neglected the Irish as a nation not only conquered but undisciplinable; and that the clergy had scarce considered them as a part of their charge; but had left them wholly into the hands of their own priests, without taking any other care of them but the making them pay their tithes. And indeed their priests were a strange sort of people, that knew generally nothing but the reading their offices, which were not so much as understood by many of them; and they taught the people nothing but the saying their paters and aves in Latin."—P. 114. Bedell took the pains to learn himself the Irish language; and though he could not speak it, composed the first grammar ever made of it; had the common prayer read every Sunday in Irish, circulated catechisms, engaged the clergy to set up schools, and even undertook a translation of the Old Testament, which he would have published but for the opposition of Laud and Strafford. P. 121.

[521] Leland, 413.

[522] Leland, 414, etc. In a letter from six catholic lords of the pale to the king in 1613, published in Desiderata Curiosa Hibernica, i. 158, they complain of the oath of supremacy, which, they say, had not been much imposed under the queen, but was now for the first time enforced in the remote parts of the country; so that the most sufficient gentry were excluded from magistracy, and meaner persons, if conformable, put instead. It is said on the other side, that the laws against recusants were very little enforced, from the difficulty of getting juries to present them. Id. 359. Carte's Ormond, 33. But this at least shows that there was some disposition to molest the catholics on the part of the government; and it is admitted that they were excluded from offices, and even from practising at the bar, on account of the oath of supremacy. Id. 320; and compare the letter of six catholic lords with the answer of lord deputy and council in the same volume.

[523] Davis's Reports, ubi supra; "Discovery of Causes," etc., 260; Carte's Life of Ormond, i. 14; Leland, 418. It had long been an object with the English government to extinguish the Irish tenures and laws. Some steps towards it were taken under Henry VIII.; but at that time there was too great a repugnance among the chieftains. In Elizabeth's instructions to the Earl of Sussex on taking the government in 1560, it is recommended that the Irish should surrender their estates, and receive grants in tail male, but no greater estate. Desiderata Curiosa Hibernica, i. 1. This would have left a reversion in the Crown, which could not have been cut off, I believe, by suffering a recovery. But as those who held by Irish tenure had probably no right to alienate their lands, they had little cause to complain. An act in 1569 (12 Eliz. c. 4), reciting the greater part of the Irish to have petitioned for leave to surrender their lands, authorises the deputy by advice of the privy council to grant letters patent to the Irish and degenerate English, yielding certain reservations to the queen. Sidney mentions, in several of his letters, that the Irish were ready to surrender their lands. Vol. i. 94, 105, 165.

The act 11 Jac. 1, c. 5, repeals divers statutes that treat the Irish as enemies, some of which have been mentioned above. It takes all the king's subjects under his protection to live by the same law. Some vestiges of the old distinctions remained in the statute-book, and were eradicated in Strafford's parliament. 10 & 11 Car. 1, c. 6.

[524] Leland, 254.

[525] See a note in Leland, ii. 302. The truth seems to be, that in this, as in other Irish forfeitures, a large part was restored to the tenants of the attainted parties.

[526] Leland, ii. 301.

[527] Carte's Life of Ormond, i. 15; Leland, 429; Farmer's "Chronicle of Sir Arthur Chichester's government," in Desiderata Curiosa Hibernica, i. 32; an important and interesting narrative; also vol. ii. of the same collection, 37; Bacon's Works, i. 657.

[528] Leland, 437, 466; Carte's Ormond, 22; Desiderata Curiosa Hibernica, 238, 243, 378 et alibi; ii. 37 et post. In another treatise published in this collection, entitled "A Discourse on the State of Ireland," 1614, an approaching rebellion is remarkably predicted. "The next rebellion, whensoever it shall happen, doth threaten more danger to the state than any that hath preceded; and my reasons are these: 1. They have the same bodies they ever had; and therein they have and had advantage over us. 2. From their infancies they have been and are exercised in the use of arms. 3. The realm, by reason of long peace, was never so full of youth as at this present. 4. That they are better soldiers than heretofore, their continual employments in the wars abroad assure us; and they do conceive that their men are better than ours. 5. That they are more politic, and able to manage rebellion with more judgment and dexterity than their elders, their experience and education are sufficient. 6. They will give the first blow; which is very advantageous to them that will give it. 7. The quarrel for the which they rebel will be under the veil of religion and liberty, than which nothing is esteemed so precious in the hearts of men. 8. And lastly, their union is such, as not only the old English dispersed abroad in all parts of the realm, but the inhabitants of the pale cities and towns, are as apt to take arms against us, which no precedent time hath ever seen, as the ancient Irish."—Vol. i. 432. "I think that little doubt is to be made, but that the modern English and Scotch would in an instant be massacred in their houses."—P. 438. This rebellion the author expected to be brought about by a league with Spain and with aid from France.

[529] The famous parliament of Kilkenny, in 1367, is said to have been very numerously attended. Leland, i. 319. We find indeed an act (10 H. 7, c. 23) annulling what was done in a preceding parliament, for this reason, among others, that the writs had not been sent to all the shires, but to four only. Yet it appears that the writs would not have been obeyed in that age.

[530] Speech of Sir John Davis (1612), on the parliamentary constitution of Ireland, in Appendix to Leland, vol. ii. p. 490, with the latter's observations on it. Carte's Ormond, i. 18; Lord Mountmorres's Hist. of Irish Parliament.

[531] In the letter of the lords of the pale to King James above mentioned, they express their apprehension that the erecting so many insignificant places to the rank of boroughs was with the view of bringing on fresh penal laws in religion; "and so the general scope and institution of parliament frustrated; they being ordained for the assurance of the subjects not to be pressed with any new edicts or laws, but such as should pass with their general consents and approbations."—P. 158. The king's mode of replying to this constitutional language was characteristic. "What is it to you whether I make many or few boroughs? My council may consider the fitness, if I require it. But what if I had created 40 noblemen and 400 boroughs? The more the merrier, the fewer the better cheer." Desid. Cur. Hib. 308.

[532] Mountmorres, i. 166. The whole number of peers in 1634 was 122, and those present in parliament that year were 66. They had the privilege not only of voting, but even protesting by proxy; and those who sent none, were sometimes fined. Id. vol. i. 316.

[533] Carte's Ormond, i. 48; Leland, ii. 475 et post.

[534] Leland, iii. 4 et post. A vehement protestation of the bishops about this time, with Usher at their head, against any connivance at popery, is a disgrace to their memory. It is to be met with in many books. Strafford, however, was far from any real liberality of sentiment. His abstinence from religious persecution was intended to be temporary, as the motives whereon it was founded. "It will be ever far forth of my heart to conceive that a conformity in religion is not above all other things principally to be intended. For undoubtedly till we be brought all under one form of divine service, the Crown is never safe on this side, etc. It were too much at once to distemper them by bringing plantations upon them, and disturbing them in the exercise of their religion, so long as it be without scandal; and so indeed very inconsiderate, as I conceive, to move in this latter, till that former be fully settled, and by that means the protestant party become by much the stronger, which in truth I do not yet conceive it to be." Straff. Letters, ii. 39. He says, however, and I believe truly, that no man had been touched for conscience' sake since he was deputy. Id. 112. Every parish, as we find by Bedell's Life, had its priest and mass-house; in some places mass was said in the churches; the Romish bishops exercised their jurisdiction, which was fully obeyed; but "the priests were grossly ignorant and openly scandalous, both for drunkenness and all sort of lewdness."—P. 41, 76. More than ten to one in his diocese, the county of Cavan, were recusants.

[535] Some at the council-board having intimated a doubt of their authority to bind the kingdom, "I was then put to my last refuge, which was plainly to declare that there was no necessity which induced me to take them to counsel in this business, for rather than fail in so necessary a duty to my master, I would undertake upon the peril of my head to make the king's army able to subsist, and to provide for itself amongst them, without their help." Strafford Letters, i. 98.

[536] Id. i. 183; Carte, 61.

[537] The protestants, he wrote word, had a majority of eight in the Commons. He told them, "it was very indifferent to him what resolution the house might take; that there were two ends he had in view, and one he would infallibly attain—either a submission of the people to his majesty's just demands, or a just occasion of breach, and either would content the king; the first was undeniably and evidently best for them."—Id. 277, 278. In his speech to the two houses, he said, "His majesty expects not to find you muttering, or to name it more truly, mutinying in corners. I am commanded to carry a very watchful eye over these private and secret conventicles, to punish the transgression with a heavy and severe hand; therefore it behoves you to look to it."—Id. 289. "Finally," he concludes, "I wish you had a right judgment in all things; yet let me not prove a Cassandra amongst you, to speak truth and not be believed. However, speak truth I will, were I to become your enemy for it. Remember therefore that I tell you, you may easily make or mar this parliament. If you proceed with respect, without laying clogs and conditions upon the king, as wise men and good subjects ought to do, you shall infallibly set up this parliament eminent to posterity, as the very basis and foundation of the greatest happiness and prosperity that ever befell this nation. But, if you meet a great king with narrow circumscribed hearts, if you will needs be wise and cautious above the moon [sic], remember again that I tell you, you shall never be able to cast your mists before the eyes of a discerning king; you shall be found out; your sons shall wish they had been the children of more believing parents; and in a time when you look not for it, when it will be too late for you to help, the sad repentance of an unadvised heart shall be yours, lasting honour shall be my master's."

These subsidies were reckoned at near £41,000 each, and were thus apportioned: Leinster paid £13,000 (of which £1000 from the city of Dublin), Munster £11,000, Ulster £10,000, Connaught £6,800. Mountmorres, ii. 16.

[538] Irish Statutes, 10 Car. 1, c. 1, 2, 3, etc.; Strafford Letters, i. 279, 312. The king expressly approved the denial of the graces, though promised formerly by himself. Id. 345; Leland, iii. 20.

"I can now say," Strafford observes (Id. 344), "the king is as absolute here as any prince in the whole world can be; and may still be, if it be not spoiled on that side."

[539] Strafford Letters, i. 353, 370, 402, 442, 451, 454, 473; ii. 113, 139, 366; Leland, iii. 30, 39; Carte, 82.

[540] It is, however, true that he discouraged the woollen manufacture, in order to keep the kingdom more dependent, and that this was part of his motive in promoting the other. Vol. ii. 19.

[541] Leland, iii. 51. Strafford himself (ii. 397) speaks highly of their disposition.

[542] Carte's Ormond, 100, 140; Leland, iii. 54 et post; Mountmorres, ii. 29. A remonstrance of the Commons to Lord-Deputy Wandesford against various grievances was presented 7th November 1640, before Lord Strafford had been impeached. Id. 39. As to confirming the graces, the delay, whether it proceeded from the king or his Irish representatives, seems to have caused some suspicion. Lord Clanricarde mentions the ill consequences that might result, in a letter to Lord Bristol. Carte's Ormond, iii. 40.

[543] Sir Henry Vane communicated to the lords justices, by the king's command, March 16, 1640-1, that advice had been received and confirmed by the ministers in Spain and elsewhere, which "deserved to be seriously considered, and an especial care and watchfulness to be had therein: that of late there have passed from Spain (and the like may well have been from other parts) an unspeakable number of Irish churchmen for England and Ireland, and some good old soldiers, under pretext of asking leave to raise men for the King of Spain; whereas, it is observed among the Irish friars there, a whisper was, as if they expected a rebellion in Ireland, and particularly in Connaught." Carte's Ormond, iii. 30. This letter, which Carte seems to have taken from a printed book, is authenticated in Clarendon State Papers, ii. 143. I have mentioned in another part of this work (Chap. VIII.) the provocations which might have induced the cabinet of Madrid to foment disturbances in Charles's dominions. The lords justices are taxed by Carte with supineness in paying no attention to this letter (vol. i. 166); but how he knew that they paid none seems hard to say.

Another imputation has been thrown on the Irish government and on the parliament, for objecting to permit levies to be made for the Spanish service out of the army raised by Strafford, and disbanded in the spring of 1641, which the king had himself proposed. Carte, i. 133; and Leland, 82, who follows the former implicitly, as he always does. The events indeed proved that it would have been far safer to let those soldiers, chiefly catholics, enlist under a foreign banner; but considering the long connection of Spain with that party, and the apprehension always entertained that the disaffected might acquire military experience in her service, the objection does not seem so very unreasonable.

[544] The fullest writer on the Irish rebellion is Carte, in his Life of Ormond, who had the use of a vast collection of documents belonging to that noble family; a selection from which forms this third volume. But he is extremely partial against all who leaned to the parliamentary or puritan side, and especially the lords justices, Parsons and Borlase; which renders him, to say the least, a very favourable witness for the catholics. Leland, with much candour towards the latter, but a good deal of the same prejudice against the presbyterians, is little more than the echo of Carte. A more vigorous, though less elegant historian, is Warner, whose impartiality is at least equal to Leland's, and who may perhaps, upon the whole, be reckoned the best modern authority. Sir John Temple's History of Irish Rebellion, and Lord Clanricarde's Letters, with a few more of less importance, are valuable contemporary testimonies.

The catholics themselves might better leave their cause to Carte and Leland than excite prejudices instead of allaying them by such a tissue of misrepresentation and disingenuousness as Curry's Historical Account of the Civil Wars in Ireland.

[545] Sir John Temple reckons the number of protestants murdered, or destroyed in some manner, from the breaking out of the rebellion in October 1641, to the cessation in September 1643, at three hundred thousand, an evident and enormous exaggeration; so that the first edition being incorrectly printed, and with numerals, we might almost suspect a cipher to have been added by mistake (p. 15, edit. Maseres). Clarendon says forty or fifty thousand were murdered in the first insurrection. Sir William Petty, in his Political Anatomy of Ireland, from calculations too vague to deserve confidence, puts the number massacred at thirty-seven thousand. Warner has scrutinised the examinations of witnesses, taken before a commission appointed in 1643, and now deposited in the library of Trinity College, Dublin; and, finding many of the depositions unsworn, and others founded on hearsay, has thrown more doubt than any earlier writer on the extent of the massacre. Upon the whole, he thinks twelve thousand lives of protestants the utmost that can be allowed for the direct or indirect effects of the rebellion, during the two first years, except losses in war (History of Irish Rebellion, p. 397), and of these only one-third by murder. It is to be remarked, however, that no distinct accounts could be preserved in formal depositions of so promiscuous a slaughter, and that the very exaggerations show its tremendous nature. The Ulster colony, a numerous and brave people, were evidently unable to make head for a considerable time against the rebels; which could hardly have been, if they had only lost a few thousands. It is idle to throw an air of ridicule (as is sometimes attempted) on the depositions, because they are mingled with some fabulous circumstances, such as the appearance of the ghosts of the murdered on the bridge at Cavan; which by the way, is only told, in the depositions subjoined to Temple, as the report of the place, and was no cold-blooded fabrication, but the work of a fancy bewildered by real horrors.

Carte, who dwells at length on every circumstance unfavourable to the opposite party, despatches the Ulster massacre in a single short paragraph, and coolly remarks, that there were not many murders, "considering the nature of such an affair," in the first week of the insurrection. Life of Ormond, i. 175-177. This is hardly reconcilable to fair dealing. Curry endeavours to discredit even Warner's very moderate estimate; and affects to call him in one place (p. 184) "a writer highly prejudiced against the insurgents," which is grossly false. He praises Carte and Nalson, the only protestants he does praise, and bestows on the latter the name of impartial. I wonder he does not say that no one protestant was murdered. Dr. Lingard has lately given a short account of the Ulster rebellion (Hist. of England, x. 154), omitting all mention of the massacre, and endeavouring in a note at the end of the volume, to disprove, by mere scraps of quotation, an event of such notoriety, that we must abandon all faith in public fame if it were really unfounded.

[546] Carte, i. 253, 266; iii. 51; Leland, 154. Sir Charles Coote and Sir William St. Leger are charged with great cruelties in Munster. The catholic confederates spoke with abhorrence of the Ulster massacre. Leland, 161; Warner, 203. They behaved, in many parts, with humanity; nor indeed do we find frequent instances of violence, except in those counties where the proprietors had been dispossessed.

[547] Carte and Leland endeavour to show that the Irish of the pale were driven into rebellion by the distrust of the lords justices, who refused to furnish them with arms, after the revolt in Ulster, and permitted the parliament to sit for one day only, in order to publish a declaration against the rebels. But the prejudice of these writers is very glaring. The insurrection broke out in Ulster, October 23, 1641; and in the beginning of December the lords of the pale were in arms. Surely this affords some presumptions that Warner has reason to think them privy to the rebellion, or, at least, not very averse to it. P. 146. And, with the suspicion that might naturally attach to all Irish catholics, could Borlase and Parsons be censurable for declining to intrust them with arms, or rather for doing so with some caution? Temple, 56. If they had acted otherwise, we should certainly have heard of their incredible imprudence. Again, the catholic party, in the House of Commons, were so cold in their loyalty, to say the least, that they objected to giving any appellation to the rebels worse than that of discontented gentlemen. Leland, 140. See too Clanricarde's Letters, p. 33, etc. In fact, several counties of Leinster and Connaught were in arms before the pale.

It has been thought by some that the lords justices had time enough to have quelled the rebellion in Ulster before it spread farther. Warner, 130. Of this, as I conceive, we should not pretend to judge confidently. Certain it is that the whole army in Ireland was very small, consisting of only nine hundred and forty-three horse, and two thousand two hundred and ninety-seven foot. Temple, 32; Carte, 194. I think Sir John Temple has been unjustly depreciated; he was master of the rolls in Ireland at the time, and a member of the council—no bad witness for what passed in Dublin; and he makes out a complete justification, as far as appears, for the conduct of the lords justices and council towards the lords of the pale and the catholic gentry. Nobody alleges that Parsons and Borlase were men of as much energy as Lord Strafford; but those who sit down in their closets, like Leland and Warner, more than a century afterwards, to lavish the most indignant contempt on their memory, should have reflected a little on the circumstances.

[548] "I perceived (says Preston, general of the Irish, writing to Lord Clanricarde) that the catholic religion, the rights and prerogatives of his majesty, my dread sovereign, the liberties of my country, and whether there should be an Irishman or no, were the prizes at stake." Carte iii. 120. Clanricarde himself expresses to the king, and to his brother, Lord Essex, in January 1642, his apprehension that the English parliament meant to make it a religious war. Clanricarde's Letters, 61 et post. The letters of this great man, perhaps the most unsullied character in the annals of Ireland, and certainly more so than even his illustrious contemporary, the Duke of Ormond, exhibit the struggles of a noble mind between love of his country and his religion on the one hand, loyalty and honour on the other. At a later period of that unhappy war, he thought himself able to conciliate both principles.

[549] Carte, ii. 221; Leland, 420.

[550] Carte, ii. 216; Leland, 414.

[551] Carte, 222 et post; Leland, 420 et post.

[552] Carte, 258-316; Leland, 431 et post.

[553] The statements of lands forfeited and restored, under the execution of the act of settlement, are not the same in all writers. Sir William Petty estimates the superficies of Ireland at 10,500,000 Irish acres (being to the English measure nearly as eight to thirteen), whereof 7,500,000 are of good land, the rest being moor, bog, and lake. In 1641, the estates of the protestant owners and of the church were about one-third of these cultivable lands, those of catholics two-thirds. The whole of the latter were seized or sequestered by Cromwell and the parliament. After summing up the allotments made by the commissioners under the act of settlement, he concludes that, in 1672, the English, protestants, and church have 5,140,000 acres, and the papists nearly half as much. Political Anatomy of Ireland, C. 1. In Lord Orrery's Letters, i. 187 et post, is a statement, which seems not altogether to tally with Sir William Petty's; nor is that of the latter clear and consistent in all its computations. Lawrence, author of "The Interest of Ireland Stated," a treatise published in 1682, says, "Of 10,868,949 acres, returned by the last survey of Ireland, the Irish papists are possessed but of 2,041,108 acres, which is but a small matter above the fifth part of the whole."—Part ii. p. 48. But, as it is evidently below one-fifth, there must be some mistake. I suspect that in one of these sums he reckoned the whole extent, and in the other only cultivable lands. Lord Clare, in his celebrated speech on the Union, greatly over-rates the confiscations.

Petty calculates that above 500,000 of the Irish "perished and were wasted by the sword, plague, famine, hardship, and banishment, between the 23rd day of October 1641, and the same day 1652;" and conceives the population of the island in 1641 to have been nearly 1,500,000, including protestants. But his conjectures are prodigiously vague.

[554] Petty is as ill satisfied with the restoration of lands to the Irish, as they could be with the confiscations. "Of all that claimed innocency, seven in eight obtained it. The restored persons have more than what was their own in 1641, by at least one-fifth. Of those adjudged innocents, not one in twenty were really so."

[555] Carte, ii. 414 et post; Leland, 458 et post.

[556] Leland, 493 et post; Mazure, Hist. de la Révolut. ii. 113.

[557] M. Mazure has brought this remarkable fact to light. Bonrepos, a French emissary in England, was authorised by his court to proceed in a negotiation with Tyrconnel for the separation of the two islands, in case that a protestant should succeed to the crown of England. He had accordingly a private interview with a confidential agent of the lord lieutenant at Chester, in the month of October 1687. Tyrconnel undertook that in less than a year everything should be prepared. Id. ii. 281, 288; iii. 430.

[558] Leland, 537. This seems to rest on the authority of Leslie, which is by no means good. Some letters of Barillon in 1687 show that James had intended the repeal of the act of settlement. Dalrymple, 257, 263.

[559] See the articles at length in Leland, 619. Those who argue from the treaty of Limerick against any political disabilities subsisting at present do injury to a good cause [1827].

[560] Irish Stat. 9 W. III. c. 2.

[561] Parl. Hist. v. 1202.

[562] 7 W. III. c. 4.

[563] 7 W. III. c. 4.

[564] 9 W. III. c. 3; 2 Anne, c. 6.

[565] Id.

[566] Id.

[567] 7 W. III. c. 5.

[568] 9 W. III. c. 1; 2 Anne, c. 3, s. 7; 8 Anne, c. 3.

[569] Carte's Ormond, i. 328; Warner, 212. These writers censure the measure as illegal and impolitic.

[570] Leland says none; but by Lord Orrery's letters, i. 35, it appears that one papist and one anabaptist were chosen for that parliament, both from Tuam.

[571] Mountmorres, i. 158.

[572] Mountmorres, 3 W. & M. c. 2.

[573] Ibid. i. 163; Plowden's Hist. Review of Ireland, i. 263. The terrible act of the second of Anne prescribes only the oaths of allegiance and abjuration for voters at elections. § 24.

[574] Such conversions were naturally distrusted. Boulter expresses alarm at the number of pseudo-protestants who practised the law; and a bill was actually passed to disable any one, who had not professed that religion for five years, from acting as a barrister or solicitor. Letters, i. 226. "The practice of the law, from the top to the bottom, is almost wholly in the hands of these converts."

[575] "Evidence of State of Ireland in Sessions of 1824 and 1825," p. 325 (as printed for Murray). In a letter of the year 1755, from a clergyman in Ireland to Archbishop Herring, in the British Museum (Sloane MSS. 4164, 11), this is also stated. The writer seems to object to a repeal of the penal laws, which the catholics were supposed to be attempting; and says they had the exercise of their religion as openly as the protestants, and monasteries in many places.

[576] Plowden's Historical Review of State of Ireland, vol. i. passim.

[577] Sir William Petty, in 1672, reckons the inhabitants of Ireland at 1,100,000; of whom 200,000 English, and 100,000 Scots; above half the former being of the established church. Political Anatomy of Ireland, chap. ii. It is sometimes said in modern times, though very erroneously, that the presbyterians form a majority of protestants in Ireland; but their proportion has probably diminished since the beginning of the eighteenth century.

[578] Plowden, 243.

[579] Irish Stat. 6 G. I. c. 5.

[580]Mountmorres, ii. 142. As one house could not regularly transmit heads of bills to the other, the advantage of a joint recommendation was obtained by means of conferences, which were consequently much more usual than in England. Id. 179.

[581] Id. 184.

[582] Carte's Ormond, iii. 55.

[583] Vol. ii.; Mountmorres, i. 360.

[584] Journals, 27th June 1698; Parl. Hist. v. 1181. They resolved at the same time that the conduct of the Irish parliament, in pretending to re-enact a law made in England expressly to bind Ireland, had given occasion to these dangerous positions. On the 30th of June they addressed the king in consequence, requesting him to prevent anything of the like kind in future. In this address, as first drawn, the legislative authority of the kingdom of England is asserted. But this phrase was omitted afterwards, I presume, as rather novel; though by doing so they destroyed the basis of their proposition, which could stand much better on the new theory of the constitution than the ancient.

[585] 5 G. I. c. 5; Plowden, 244. The Irish House of Lords had, however, entertained writs of error as early as 1644, and appeals in equity from 1661. Mountmorres, i. 339. The English peers might have remembered that their own precedents were not much older.

[586] See Boulter's Letters, passim. His plan for governing Ireland was to send over as many English-born bishops as possible. "The bishops," he says, "are the persons on whom the government must depend for doing the public business here." I. 238. This of course disgusted the Irish church.

[587] Mountmorres, i. 424.

[588] Plowden, 306 et post; Hardy's Life of Lord Charlemont.