The History of England, from the Accession of James II — Volume 3

by Baron Thomas Babington Macaulay Macaulay

The arrival of Mackay's troops, and the determination of Gordon to remain inactive, quelled the spirit of the Jacobites. They had indeed one chance left. They might possibly, by joining with those Whigs who were bent on an union with England, have postponed during a considerable time the settlement of the government. A negotiation was actually opened with this view, but was speedily broken off. For it soon appeared that the party which was for James was really hostile to the union, and that the party which was for the union was really hostile to James. As these two parties had no object in common, the only effect of a coalition between them must have been that one of them would have become the tool of the other. The question of the union therefore was not raised, [303] Some Jacobites retired to their country seats: others, though they remained at Edinburgh, ceased to show themselves in the Parliament House: many passed over to the winning side; and, when at length the resolutions prepared by the Twenty Four were submitted to the Convention, it appeared that the party which on the first day of the session had rallied round Athol had dwindled away to nothing.

The resolutions had been framed, as far as possible, in conformity with the example recently set at Westminster. In one important point, however, it was absolutely necessary that the copy should deviate from the original. The Estates of England had brought two charges against James, his misgovernment and his flight, and had, by using the soft word "Abdication," evaded, with some sacrifice of verbal precision, the question whether subjects may lawfully depose a bad prince. That question the Estates of Scotland could not evade. They could not pretend that James had deserted his post. For he had never, since he came to the throne, resided in Scotland. During many years that kingdom had been ruled by sovereigns who dwelt in another land. The whole machinery of the administration had been constructed on the supposition that the King would be absent, and was therefore not necessarily deranged by that flight which had, in the south of the island, dissolved all government, and suspended the ordinary course of justice. It was only by letter that the King could, when he was at Whitehall, communicate with the Council and the Parliament at Edinburgh; and by letter he could communicate with them when he was at Saint Germains or at Dublin. The Twenty Four were therefore forced to propose to the Estates a resolution distinctly declaring that James the Seventh had by his misconduct forfeited the crown. Many writers have inferred from the language of this resolution that sound political principles had made a greater progress in Scotland than in England. But the whole history of the two countries from the Restoration to the Union proves this inference to be erroneous. The Scottish Estates used plain language, simply because it was impossible for them, situated as they were, to use evasive language.

The person who bore the chief part in framing the resolution, and in defending it, was Sir John Dalrymple, who had recently held the high office of Lord Advocate, and had been an accomplice in some of the misdeeds which he now arraigned with great force of reasoning and eloquence. He was strenuously supported by Sir James Montgomery, member for Ayrshire, a man of considerable abilities, but of loose principles, turbulent temper, insatiable cupidity, and implacable malevolence. The Archbishop of Glasgow and Sir George Mackenzie spoke on the other side: but the only effect of their oratory was to deprive their party of the advantage of being able to allege that the Estates were under duress, and that liberty of speech had been denied to the defenders of hereditary monarchy.

When the question was put, Athol, Queensberry, and some of their friends withdrew. Only five members voted against the resolution which pronounced that James had forfeited his right to the allegiance of his subjects. When it was moved that the Crown of Scotland should be settled as the Crown of England had been settled, Athol and Queensberry reappeared in the hall. They had doubted, they said, whether they could justifiably declare the throne vacant. But, since it had been declared vacant, they felt no doubt that William and Mary were the persons who ought to fill it.

The Convention then went forth in procession to the High Street. Several great nobles, attended by the Lord Provost of the capital and by the heralds, ascended the octagon tower from which rose the city cross surmounted by the unicorn of Scotland, [304] Hamilton read the vote of the Convention; and a King at Arms proclaimed the new Sovereigns with sound of trumpet. On the same day the Estates issued an order that the parochial clergy should, on pain of deprivation, publish from their pulpits the proclamation which had just been read at the city cross, and should pray for King William and Queen Mary.

Still the interregnum was not at an end. Though the new Sovereigns had been proclaimed, they had not yet been put into possession of the royal authority by a formal tender and a formal acceptance. At Edinburgh, as at Westminster, it was thought necessary that the instrument which settled the government should clearly define and solemnly assert those privileges of the people which the Stuarts had illegally infringed. A Claim of Right was therefore drawn up by the Twenty Four, and adopted by the Convention. To this Claim, which purported to be merely declaratory of the law as it stood, was added a supplementary paper containing a list of grievances which could be remedied only by new laws. One most important article which we should naturally expect to find at the head of such a list, the Convention, with great practical prudence, but in defiance of notorious facts and of unanswerable arguments, placed in the Claim of Right. Nobody could deny that prelacy was established by Act of Parliament. The power exercised by the Bishops might be pernicious, unscriptural, antichristian but illegal it certainly was not; and to pronounce it illegal was to outrage common sense. The Whig leaders however were much more desirous to get rid of episcopacy than to prove themselves consummate publicists and logicians. If they made the abolition of episcopacy an article of the contract by which William was to hold the crown, they attained their end, though doubtless in a manner open to much criticism. If, on the other hand, they contented themselves with resolving that episcopacy was a noxious institution which at some future time the legislature would do well to abolish, they might find that their resolution, though unobjectionable in form, was barren of consequences. They knew that William by no means sympathized with their dislike of Bishops, and that, even had he been much more zealous for the Calvinistic model than he was, the relation in which he stood to the Anglican Church would make it difficult and dangerous for him to declare himself hostile to a fundamental part of the constitution of that Church. If he should become King of Scotland without being fettered by any pledge on this subject, it might well be apprehended that he would hesitate about passing an Act which would be regarded with abhorrence by a large body of his subjects in the south of the island. It was therefore most desirable that the question should be settled while the throne was still vacant. In this opinion many politicians concurred, who had no dislike to rochets and mitres, but who wished that William might have a quiet and prosperous reign. The Scottish people,—so these men reasoned,—hated episcopacy. The English loved it. To leave William any voice in the matter was to put him under the necessity of deeply wounding the strongest feelings of one of the nations which he governed. It was therefore plainly for his own interest that the question, which he could not settle in any manner without incurring a fearful amount of obloquy, should be settled for him by others who were exposed to no such danger. He was not yet Sovereign of Scotland. While the interregnum lasted, the supreme power belonged to the Estates; and for what the Estates might do the prelatists of his southern kingdom could not hold him responsible. The elder Dalrymple wrote strongly from London to this effect, and there can be little doubt that he expressed the sentiments of his master. William would have sincerely rejoiced if the Scots could have been reconciled to a modified episcopacy. But, since that could not be, it was manifestly desirable that they should themselves, while there was yet no King over them, pronounce the irrevocable doom of the institution which they abhorred, [305]

The Convention, therefore, with little debate as it should seem, inserted in the Claim of Right a clause declaring that prelacy was an insupportable burden to the kingdom, that it had been long odious to the body of the people, and that it ought to be abolished.

Nothing in the proceedings at Edinburgh astonishes an Englishman more than the manner in which the Estates dealt with the practice of torture. In England torture had always been illegal. In the most servile times the judges had unanimously pronounced it so. Those rulers who had occasionally resorted to it had, as far as was possible, used it in secret, had never pretended that they had acted in conformity with either statute law or common law, and had excused themselves by saying that the extraordinary peril to which the state was exposed had forced them to take on themselves the responsibility of employing extraordinarily means of defence. It had therefore never been thought necessary by any English Parliament to pass any Act or resolution touching this matter. The torture was not mentioned in the Petition of Right, or in any of the statutes framed by the Long Parliament. No member of the Convention of 1689 dreamed of proposing that the instrument which called the Prince and Princess of Orange to the throne should contain a declaration against the using of racks and thumbscrews for the purpose of forcing prisoners to accuse themselves. Such a declaration would have been justly regarded as weakening rather than strengthening a rule which, as far back as the days of the Plantagenets, had been proudly declared by the most illustrious sages of Westminster Hall to be a distinguishing feature of the English jurisprudence, [306] In the Scottish Claim of Right, the use of torture, without evidence, or in ordinary cases, was declared to be contrary to law. The use of torture, therefore, where there was strong evidence, and where the crime was extraordinary, was, by the plainest implication, declared to be according to law; nor did the Estates mention the use of torture among the grievances which required a legislative remedy. In truth, they could not condemn the use of torture without condemning themselves. It had chanced that, while they were employed in settling the government, the eloquent and learned Lord President Lockhart had been foully murdered in a public street through which he was returning from church on a Sunday. The murderer was seized, and proved to be a wretch who, having treated his wife barbarously and turned her out of doors, had been compelled by a decree of the Court of Session to provide for her. A savage hatred of the judges by whom she had been protected had taken possession of his mind, and had goaded him to a horrible crime and a horrible fate. It was natural that an assassination attended by so many circumstances of aggravation should move the indignation of the members of the Convention. Yet they should have considered the gravity of the conjuncture and the importance of their own mission. They unfortunately, in the heat of passion, directed the magistrates of Edinburgh to strike the prisoner in the boots, and named a Committee to superintend the operation. But for this unhappy event, it is probable that the law of Scotland concerning torture would have been immediately assimilated to the law of England, [307]

Having settled the Claim of Right, the Convention proceeded to revise the Coronation oath. When this had been done, three members were appointed to carry the Instrument of Government to London. Argyle, though not, in strictness of law, a Peer, was chosen to represent the Peers: Sir James Montgomery represented the Commissioners of Shires, and Sir John Dalrymple the Commissioners of Towns.

The Estates then adjourned for a few weeks, having first passed a vote which empowered Hamilton to take such measures as might be necessary for the preservation of the public peace till the end of the interregnum.