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age, and were for maintaining the revolution government by its own principles, and not by those of a government it had superseded."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.