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

by Baron Thomas Babington Macaulay Macaulay

The reply was complete and triumphant. "Oates is now the smallest part of the question. He has, Your Lordships say, falsely accused the Queen Dowager and other innocent persons. Be it so. This bill gives him no indemnity. We are quite willing that, if he is guilty, he shall be punished. But for him, and for all Englishmen, we demand that punishment shall be regulated by law, and not by the arbitrary discretion of any tribunal. We demand that, when a writ of error is before Your Lordships, you shall give judgment on it according to the known customs and statutes of the realm. We deny that you have any right, on such occasions, to take into consideration the moral character of a plaintiff or the political effect of a decision. It is acknowledged by yourselves that you have, merely because you thought ill of this man, affirmed a judgment which you knew to be illegal. Against this assumption of arbitrary power the Commons protest; and they hope that you will now redeem what you must feel to be an error. Your Lordships intimate a suspicion that Oates is mad. That a man is mad may be a very good reason for not punishing him at all. But how it can be a reason for inflicting on him a punishment which would be illegal even if he were sane, the Commons do not comprehend. Your Lordships think that you should not be justified in calling a verdict corrupt which has not been legally proved to be so. Suffer us to remind you that you have two distinct functions to perform. You are judges; and you are legislators. When you judge, your duty is strictly to follow the law. When you legislate, you may properly take facts from common fame. You invert this rule. You are lax in the wrong place, and scrupulous in the wrong place. As judges, you break through the law for the sake of a supposed convenience. As legislators, you will not admit any fact without such technical proof as it is rarely possible for legislators to obtain." [401]

This reasoning was not and could not be answered. The Commons were evidently flushed with their victory in the argument, and proud of the appearance which Somers had made in the Painted Chamber. They particularly charged him to see that the report which he had made of the conference was accurately entered in the journals. The Lords very wisely abstained from inserting in their records an account of a debate in which they had been so signally discomfited. But, though conscious of their fault and ashamed of it, they could not be brought to do public penance by owning, in the preamble of the Act, that they had been guilty of injustice. The minority was, however, strong. The resolution to adhere was carried by only twelve votes, of which ten were proxies, [402]

Twenty-one Peers protested. The bill dropped. Two Masters in Chancery were sent to announce to the Commons the final resolution of the Peers. The Commons thought this proceeding unjustifiable in substance and uncourteous in form. They determined to remonstrate; and Somers drew up an excellent manifesto, in which the vile name of Oates was scarcely mentioned, and in which the Upper House was with great earnestness and gravity exhorted to treat judicial questions judicially, and not, under pretence of administering law, to make law, [403] The wretched man, who had now a second time thrown the political world into confusion, received a pardon, and was set at liberty. His friends in the Lower House moved an address to the Throne, requesting that a pension sufficient for his support might be granted to him, [404] He was consequently allowed about three hundred a year, a sum which he thought unworthy of his acceptance, and which he took with the savage snarl of disappointed greediness.

From the dispute about Oates sprang another dispute, which might have produced very serious consequences. The instrument which had declared William and Mary King and Queen was a revolutionary instrument. It had been drawn up by an assembly unknown to the ordinary law, and had never received the royal sanction. It was evidently desirable that this great contract between the governors and the governed, this titledeed by which the King held his throne and the people their liberties, should be put into a strictly regular form. The Declaration of Rights was therefore turned into a Bill of Rights; and the Bill of Rights speedily passed the Commons; but in the Lords difficulties arose.

The Declaration had settled the crown, first on William and Mary jointly, then on the survivor of the two, then on Mary's posterity, then on Anne and her posterity, and, lastly, on the posterity of William by any other wife than Mary. The Bill had been drawn in exact conformity with the Declaration. Who was to succeed if Mary, Anne, and William should all die without posterity, was left in uncertainty. Yet the event for which no provision was made was far from improbable. Indeed it really came to pass. William had never had a child. Anne had repeatedly been a mother, but had no child living. It would not be very strange if, in a few months, disease, war, or treason should remove all those who stood in the entail. In what state would the country then be left? To whom would allegiance be due? The bill indeed contained a clause which excluded Papists from the throne. But would such a clause supply the place of a clause designating the successor by name? What if the next heir should be a prince of the House of Savoy not three months old? It would be absurd to call such an infant a Papist. Was he then to be proclaimed King? Or was the crown to be in abeyance till he came to an age at which he might be capable of choosing a religion? Might not the most honest and the most intelligent men be in doubt whether they ought to regard him as their Sovereign? And to whom could they look for a solution of this doubt? Parliament there would be none: for the Parliament would expire with the prince who had convoked it. There would be mere anarchy, anarchy which might end in the destruction of the monarchy, or in the destruction of public liberty. For these weighty reasons, Barnet, at William's suggestion, proposed it the House of Lords that the crown should, failing heirs of His Majesty's body, be entailed on an undoubted Protestant, Sophia, Duchess of Brunswick Lunenburg, granddaughter of James the First, and daughter of Elizabeth, Queen of Bohemia.

The Lords unanimously assented to this amendment: but the Commons unanimously rejected it. The cause of the rejection no contemporary writer has satisfactorily explained. One Whig historian talks of the machinations of the republicans, another of the machinations of the Jacobites. But it is quite certain that four fifths of the representatives of the people were neither Jacobites nor republicans. Yet not a single voice was raised in the Lower House in favour of the clause which in the Upper House had been carried by acclamation, [405] The most probable explanation seems to be that the gross injustice which had been committed in the case of Oates had irritated the Commons to such a degree that they were glad of an opportunity to quarrel with the Peers. A conference was held. Neither assembly would give way. While the dispute was hottest, an event took place which, it might have been thought, would have restored harmony. Anne gave birth to a son. The child was baptized at Hampton Court with great pomp, and with many signs of public joy. William was one of the sponsors. The other was the accomplished Dorset, whose roof had given shelter to the Princess in her distress. The King bestowed his own name on his godson, and announced to the splendid circle assembled around the font that the little William was henceforth to be called Duke of Gloucester, [406] The birth of this child had greatly diminished the risk against which the Lords had thought it necessary to guard. They might therefore have retracted with a good grace. But their pride had been wounded by the severity with which their decision on Oates's writ of error had been censured in the Painted Chamber. They had been plainly told across the table that they were unjust judges; and the imputation was not the less irritating because they were conscious that it was deserved. They refused to make any concession; and the Bill of Rights was suffered to drop, [407]

But the most exciting question of this long and stormy session was, what punishment should be inflicted on those men who had, during the interval between the dissolution of the Oxford Parliament and the Revolution, been the advisers or the tools of Charles and James. It was happy for England that, at this crisis, a prince who belonged to neither of her factions, who loved neither, who hated neither, and who, for the accomplishment of a great design, wished to make use of both, was the moderator between them.

The two parties were now in a position closely resembling that in which they had been twenty-eight years before. The party indeed which had then been undermost was now uppermost: but the analogy between the situations is one of the most perfect that can be found in history. Both the Restoration and the Revolution was accomplished by coalitions. At the Restoration, those politicians who were peculiarly zealous for liberty assisted to reestablish monarchy: at the Revolution those politicians who were peculiarly zealous for monarchy assisted to vindicate liberty. The Cavalier would, at the former conjuncture, have been able to effect nothing without the help of Puritans who had fought for the Covenant; nor would the Whig, at the latter conjuncture, have offered a successful resistance to arbitrary power, had he not been backed by men who had a very short time before condemned resistance to arbitrary power as a deadly sin. Conspicuous among those by whom, in 1660, the royal family was brought back, were Hopis, who had in the days of the tyranny of Charles the First held down the Speaker in the chair by main force, while Black Rod knocked for admission in vain; Ingoldsby, whose name was subscribed to the memorable death warrant; and Prynne, whose ears Laud had cut off, and who, in return, had borne the chief part in cutting off Laud's head. Among the seven who, in 1688, signed the invitation to William, were Compton, who had long enforced the duty of obeying Nero; Danby, who had been impeached for endeavouring to establish military despotism; and Lumley, whose bloodhounds had tracked Monmouth to that sad last hiding place among the fern. Both in 1660 and in 1688, while the fate of the nation still hung in the balance, forgiveness was exchanged between the hostile factions. On both occasions the reconciliation, which had seemed to be cordial in the hour of danger, proved false and hollow in the hour of triumph. As soon as Charles the Second was at Whitehall, the Cavalier forgot the good service recently done by the Presbyterians, and remembered only their old offences. As soon as William was King, too many of the Whigs began to demand vengeance for all that they had, in the days of the Rye House Plot, suffered at the hands of the Tories. On both occasions the Sovereign found it difficult to save the vanquished party from the fury of his triumphant supporters; and on both occasions those whom he had disappointed of their revenge murmured bitterly against the government which had been so weak and ungrateful as to protect its foes against its friends.

So early as the twenty-fifth of March, William called the attention of the Commons to the expediency of quieting the public mind by an amnesty. He expressed his hope that a bill of general pardon and oblivion would be as speedily as possible presented for his sanction, and that no exceptions would be made, except such as were absolutely necessary for the vindication of public justice and for the safety of the state. The Commons unanimously agreed to thank him for this instance of his paternal kindness: but they suffered many weeks to pass without taking any step towards the accomplishment of his wish. When at length the subject was resumed, it was resumed in such a manner as plainly showed that the majority had no real intention of putting an end to the suspense which embittered the lives of all those Tories who were conscious that, in their zeal for prerogative, they had some times overstepped the exact line traced by law. Twelve categories were framed, some of which were so extensive as to include tens of thousands of delinquents; and the House resolved that, under every one of these categories, some exceptions should be made. Then came the examination into the cases of individuals. Numerous culprits and witnesses were summoned to the bar. The debates were long and sharp; and it soon became evident that the work was interminable. The summer glided away: the autumn was approaching: the session could not last much longer; and of the twelve distinct inquisitions, which the Commons had resolved to institute, only three had been brought to a close. It was necessary to let the bill drop for that year, [408]

Among the many offenders whose names were mentioned in the course of these inquiries, was one who stood alone and unapproached in guilt and infamy, and whom Whigs and Tories were equally willing to leave to the extreme rigour of the law. On that terrible day which was succeeded by the Irish Night, the roar of a great city disappointed of its revenge had followed Jeffreys to the drawbridge of the Tower. His imprisonment was not strictly legal: but he at first accepted with thanks and blessings the protection which those dark walls, made famous by so many crimes and sorrows, afforded him against the fury of the multitude, [409] Soon, however, he became sensible that his life was still in imminent peril. For a time he flattered himself with the hope that a writ of Habeas Corpus would liberate him from his confinement, and that he should be able to steal away to some foreign country, and to hide himself with part of his ill gotten wealth from the detestation of mankind: but, till the government was settled, there was no Court competent to grant a writ of Habeas Corpus; and, as soon as the government had been settled, the Habeas Corpus Act was suspended, [410] Whether the legal guilt of murder could be brought home to Jeffreys may be doubted. But he was morally guilty of so many murders that, if there had been no other way of reaching his life, a retrospective Act of Attainder would have been clamorously demanded by the whole nation. A disposition to triumph over the fallen has never been one of the besetting sins of Englishmen: but the hatred of which Jeffreys was the object was without a parallel in our history, and partook but too largely of the savageness of his own nature. The people, where he was concerned, were as cruel as himself, and exulted in his misery as he had been accustomed to exult in the misery of convicts listening to the sentence of death, and of families clad in mourning. The rabble congregated before his deserted mansion in Duke Street, and read on the door, with shouts of laughter, the bills which announced the sale of his property. Even delicate women, who had tears for highwaymen and housebreakers, breathed nothing but vengeance against him. The lampoons on him which were hawked about the town were distinguished by an atrocity rare even in those days. Hanging would be too mild a death for him: a grave under the gibbet too respectable a resting place: he ought to be whipped to death at the cart's tail: he ought to be tortured like an Indian: he ought to be devoured alive. The street poets portioned out all his joints with cannibal ferocity, and computed how many pounds of steaks might be cut from his well fattened carcass. Nay, the rage of his enemies was such that, in language seldom heard in England, they proclaimed their wish that he might go to the place of wailing and gnashing of teeth, to the worm that never dies, to the fire that is never quenched. They exhorted him to hang himself in his garters, and to cut his throat with his razor. They put up horrible prayers that he might not be able to repent, that he might die the same hardhearted, wicked Jeffreys that he had lived, [411] His spirit, as mean in adversity as insolent and inhuman in prosperity, sank down under the load of public abhorrence. His constitution, originally bad, and much impaired by intemperance, was completely broken by distress and anxiety. He was tormented by a cruel internal disease, which the most skilful surgeons of that age were seldom able to relieve. One solace was left to him, brandy. Even when he had causes to try and councils to attend, he had seldom gone to bed sober. Now, when he had nothing to occupy his mind save terrible recollections and terrible forebodings, he abandoned himself without reserve to his favourite vice. Many believed him to be bent on shortening his life by excess. He thought it better, they said, to go off in a drunken fit than to be hacked by Ketch, or torn limb from limb by the populace.