[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.