Baillie, naturally slow to suspect, does not come fully to understand the character of the man until a very few months before his death. He then complains bitterly to his continental correspondent, amid the ruin of the Church, and from the gloom of his sick-chamber, that Sharpe was the traitor who, ‘piece by piece, had so cunningly trepanned them, that the cause had been suffered to sink without even a struggle.’ The apostate had gained his object, however, and become ‘His Grace the Lord Primate.’ There were great rejoicings. ‘The new bishops were magnificklie received;’ they were feasted by the Lord Commissioner’s lady on one night, by the Chancellor on another; and in especial, ‘the Archbishop had bought a new coach at London, at the sides whereof two lakqueys in purple did run.’
The vanity of Sharpe is well brought out on another occasion by Burnet. The main object of one of his journeys to London, undertaken a little more than a twelvemonth after the death of Baillie, was to urge on the King that, as Primate of Scotland, he should of right take precedence of the Scottish Lord Chancellor, and to crave His Majesty’s letter to that effect. In this trait, as in several others, he seems to have resembled Robespierre. His cruelty to his old friends the Presbyterians is well illustrated by the fact that he could make the comparative leniency of Lauderdale, apostate and persecutor as Lauderdale was, the subject of an accusation against him to Charles. But there is no lack of still directer instances in the biographies of the worthies whom his malice pursued. His meanness, too, seems to have been equal to his malice and pride. When Lauderdale on one occasion turned fiercely upon him, and threatened to impeach him for leasing-making, he ‘straightway fell a-trembling and weeping,’ and, to avoid the danger, submitted to appear in the royal presence; and there, in the coarsest terms, to confess 257 himself a liar. It is a bishop who tells the story, and it is only one of a series. Truly the Primate of all Scotland was fortunate in the death he died. ‘The dismal end of this unhappy man,’ says Burnet, ‘struck all people with horror, and softened his enemies into some tenderness; so that his memory was treated with decency by those who had very little respect for him during his life.’
In almost every page in this instructive volume the reader picks up pieces of curious information, or finds matters suggestive of interesting thought. There start up ever and anon valuable hints that germinate and bear fruit in the mind. We would instance, by way of illustration, a hint which occurs in a letter to Lauderdale, written shortly after the Restoration, and which, though apparently slight, leads legitimately into a not unimportant train of thinking. Scotchmen are much in the habit of referring to the political maxim that the king can do no wrong, as a fundamental principle of the constitution, which concerns them as directly as it does their neighbours the English. Dr. Chalmers alluded to it no later than last week, in his admirable speech in the Commission. The old maxim, that the king could do no wrong, he said, had now, it would seem, descended from the throne to the level of courts co-ordinate with the Church. Would it not be a somewhat curious matter to find that this doctrine is one which has in reality not entered Scotland at all? It stands in England, a guardian in front of the throne, transferring every blow which would otherwise fall on the sovereign himself, to the sovereign’s ministers: it is ministers, not sovereigns, who are responsible to the people of England. But it would at least seem, that with regard to the people of Scotland the responsibility extends further. At least the English doctrine was regarded as exclusively an English one in the days of Baillie, nearly half a century prior to the Union, and more than a whole century ahead of those times in which 258 the influence of that event began to have the effect of mixing up in men’s minds matters peculiar to England with matters common to Britain. We find Baillie, in his letter written immediately after the passing of the Act Recissory, pronouncing the doctrine that the ‘king can do no fault,’ as in his judgment ‘good and wise,’ but referring to it at the same time as a doctrine, not of the Scottish Constitution, but of the ‘State of England.’
The circumstance is of importance chiefly from the light which it serves to cast on an interesting passage in Scottish history. The famous declaration of our Scotch Convention at the Revolution, that James VII. had forfeited the throne, as contrasted with the singularly inadequate though virtually corresponding declaration of the English Convention, that James II. ‘had abdicated the government, and that the throne was thereby vacant,’ has been often remarked by the historians. Hume indirectly accounts for the employment of the stronger word, by prominently stating that the more zealous among the Scotch Royalists, regarding the assembly as illegal, had forborne to appear at elections, and that the antagonist party commanded a preponderating majority in consequence; whereas in England the Tories mustered strong, and had to be conciliated by the employment of softer language. Malcolm Laing, in noticing the fact, contents himself by simply contrasting the indignation on the part of the Scotch, which had been aroused by their recent sufferings, with the quieter temper of the English, who had been less tried by the pressure of actual persecution, and who were anxious to impart to Revolution at least the colour of legitimate succession. And Sir James Mackintosh, in his Vindiciæ Gallicæ, contents himself with simply remarking that the ‘absurd debates in the English Convention were better cut short by the Parliament of Scotland, when they used the correct and manly expression that James VII. had forfeited the throne.’ We are of opinion 259 that the very different styles of the two Conventions may be accounted for on the ground that, in the one kingdom, the monarch, according to the genius of the constitution, was regarded as incapable of committing wrong; whereas, in the other, he was no less constitutionally regarded as equally peccable with any of his subjects. A peccable monarch may forfeit his throne; an impeccable one can only abdicate it. The argument must of course depend on the soundness of Baillie’s statement. Was the doctrine that the king can do no wrong a Scottish doctrine at the time of the Revolution, or was it not?
It was at least not a Scottish one in the days of Buchanan,––nor for a century after, as we may learn very conclusively, not from Buchanan himself, nor his followers––for the political doctrines of a school of writers may be much at variance with those of their country––but from the many Scottish controversialists on the antagonist side, who entered the lists against both the master and his disciples. Buchanan maintained, in his philosophical treatise, De Jure Regni apud Scotos, that there are conditions by which the King of Scotland is bound to his people, on the fulfilment of which the allegiance of the people depends, and that ‘it is lawful to depose, and even to punish tyrants.’ Knox, with the other worthies of the first Reformation, held exactly the same doctrine. The Lex Rex of Rutherford testifies significantly to the fact that among the worthies of the second Reformation it was not suffered to become obsolete. It takes a prominent place in writings of the later Covenanters, such as the Hind let Loose; and at the Revolution it received the practical concurrence of the National Convention, and of the country generally. Now the doctrine, be it remembered, was an often disputed one. Buchanan’s little work was the very butt of controversy for considerably more than an hundred years. It was prohibited by Parliament, denounced 260 by monarchs, condemned to the flames by universities; great lawyers wrote treatises against it at home, and some of the most celebrated scholars of continental Europe took the field against it abroad. We learn from Dr. Irving, in his Classical Biography, that it was assailed among our own countrymen by Blackwood, Winzet, Barclay, Sir Thomas Craig, Sir John Wemyss, Sir Lewis Stewart, Sir James Turner, and last, not least, among the writers who preceded the Revolution, by the meanly obsequious and bloody Sir George Mackenzie. And how did these Scotchmen meet with the grand doctrine which it embodied? The ‘old maxime of the state of England,’ had it extended to the sister kingdom, would have at once furnished the materials of reply. If constitutionally the King of Scotland could do no wrong, then constitutionally the King of Scotland could not be deposed. But of an entirely different complexion was the argument of which the Scottish assailants of Buchanan availed themselves. It was an argument subversive to the English maxim. Admitting fully that the king could do wrong, they maintained merely that, for whatever wrong he did, he was responsible, not to his subjects, but to God only. Whatever the amount of wrong he committed, it was the duty of his subjects, they said, passively to submit to it. On came the Revolution. In England, in perfect agreement with the doctrine of the king’s impeccability––in perfect agreement, at least, so far as words were concerned––it was declared that James had abdicated the government, and that the throne was thereby vacant; and certainly it cannot be alleged by even the severest moralist, that in either abdicating a government or vacating a throne, there is the slightest shadow of moral evil involved. In Scotland the decision was different. The battle fought in the Convention was exactly that which had been previously fought between Buchanan and his antagonists. ‘Paterson, Archbishop of Glasgow, and Sir 261 George Mackenzie, asserted,’ says Malcolm Laing, ‘the doctrine of divine right, or maintained, with more plausibility, that every illegal measure of James’s government was vindicated by the declaration of the late Parliament, that he was an absolute monarch, entitled to unreserved obedience, AND ACCOUNTABLE TO NONE; while Sir James Montgomery and Sir John Dalrymple, who conducted the debate on the other side, averred that the Parliament was neither competent to grant, nor the king to acquire, an absolute power, irreconcilable with the RECIPROCAL OBLIGATIONS DUE TO THE PEOPLE.’ The doctrines of Buchanan prevailed; and the estates declared that James VII. having, through ‘the advice of evil and wicked councillors, invaded the fundamental constitution of the kingdom, and altered it from a legal limited monarchy to an arbitrary despotic power,’ he had thereby forfaulted his right to the crown.’ The terms of the declaration demonstrate that Baillie was quite in the right regarding the ‘old maxime, that the king can do no fault,’ as exclusively a ‘maxime of the State of England.’ By acting on the advice of ‘evil and wicked councillors,’ it was declared that a peccable king had forfeited the throne. The fact that there were councillors in the case did not so much even as extenuate the offence: it was the advisers of the King who then, as now, were accountable to the King’s English subjects for the advice they gave; it was the King in person who was accountable to his Scottish subjects for the advice he took. This principle, hitherto little adverted to, throws, as we have said, much light on the history of the Revolution in Scotland.
FIRST PRINCIPLES.
There is a passage in the Life of Sir Matthew Hale which has struck us as not only interesting in itself, from the breadth and rectitude of judgment which it discloses, but also from the very direct bearing of the principle involved in it on some of the recent interdicts of the Supreme Civil Court. It serves to throw a kind of historic light, if we may so speak, on the judicial talent of our country in the present age as exhibited by the majority of our judges of the Court of Session––such a light as the ecclesiastical historian of a century hence will be disposed to survey it in, when coolly exercising his judgment on the present eventful struggle. One of not the least prominent nor least remarkable features of the Rebellion of 1745, says a shrewd chronicler of this curious portion of our history, was an utter destitution of military talent among the general officers of the British army. And the time is in all probability not very distant, in which the extreme lack of judicial genius betrayed by our courts of law in their present collision with the courts ecclesiastical, shall be regarded, in like manner, as one of the more striking characteristics of the Rebellion of the present day.
Sir Matthew Hale, as most of our readers must be aware, was a devoted Royalist. He was rising in eminence as a barrister at the time the Civil Wars broke out, and during that troublesome period he was employed as counsel for almost all the more eminent men of the King’s party who were impeached by the Parliament. He was counsel for 263 the Earl of Strafford, for Archbishop Laud, for the Duke of Hamilton, for the Earl of Holland, and for Lords Capel and Craven; and in every instance he exhibited courage the most unshrinking and devoted, and abilities of the highest order. When threatened in open court on one occasion by the Attorney-General, he replied that the threat might be spared: he was pleading in defence of those laws which the Government had declared it would maintain and preserve, and no fear of personal consequences should deter him in such circumstances from doing his duty to his client. When Charles himself was brought to his trial, Sir Matthew came voluntarily forward, and offered to plead for him also; but as the King declined recognising the competency of his judges, the offer was of course rejected. We all know how Malesherbes fared for acting a similar part in France. The counsel of Louis XVI. closed his honourable career on the scaffold not long after his unfortunate master: his generous advocacy of the devoted monarch cost him his life. But Cromwell, that ‘least flagitious of all usurpers,’ according to even Clarendon’s estimate, was no Robespierre; and were we called on to illustrate by a single instance from the history of each the very opposite characters of the Puritan Republicans of England and the Atheistical Republican of France, we would just set off against one another the fate of Malesherbes and the treatment of Sir Matthew. Cromwell, unequalled in his ability of weighing the capabilities of men, had been carefully scanning the course of the courageous and honest barrister; and, convinced that so able a lawyer and so good and brave a man could scarce fail of making an excellent judge, he determined on raising him to the bench. At this stage, however, a difficulty interposed, not in the liberal and enlightened policy of the Protector, who had no objections whatever to a conscientious Royalist magistrate, but in the scruples of Sir 264 Matthew, who at first doubted the propriety of taking office under what he deemed a usurped power.