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

Halifax, more fortunate than Dudley North, was completely cleared, not only from legal, but also from moral guilt. He was the chief object of attack; and yet a severe examination brought nothing to light that was not to his honour. Tillotson was called as a witness. He swore that he had been the channel of communication between Halifax and Russell when Russell was a prisoner in the Tower. "My Lord Halifax," said the Doctor, "showed a very compassionate concern for my Lord Russell; and my Lord Russell charged me with his last thanks for my Lord Halifax's humanity and kindness." It was proved that the unfortunate Duke of Monmouth had borne similar testimony to Halifax's good nature. One hostile witness indeed was produced, John Hampden, whose mean supplications and enormous bribes had saved his neck from the halter. He was now a powerful and prosperous man: he was a leader of the dominant party in the House of Commons; and yet he was one of the most unhappy beings on the face of the earth. The recollection of the pitiable figure which he had made at the bar of the Old Bailey embittered his temper, and impelled him to avenge himself without mercy on those who had directly or indirectly contributed to his humiliation. Of all the Whigs he was the most intolerant and the most obstinately hostile to all plans of amnesty. The consciousness that he had disgraced himself made him jealous of his dignity and quick to take offence. He constantly paraded his services and his sufferings, as if he hoped that this ostentatious display would hide from others the stain which nothing could hide from himself. Having during many months harangued vehemently against Halifax in the House of Commons, he now came to swear against Halifax before the Lords. The scene was curious. The witness represented himself as having saved his country, as having planned the Revolution, as having placed their Majesties on the throne. He then gave evidence intended to show that his life had been endangered by the machinations of the Lord Privy Seal: but that evidence missed the mark at which it was aimed, and recoiled on him from whom it proceeded. Hampden was forced to acknowledge that he had sent his wife to implore the intercession of the man whom he was now persecuting. "Is it not strange," asked Halifax, "that you should have requested the good offices of one whose arts had brought your head into peril?" "Not at all," said Hampden; "to whom was I to apply except to the men who were in power? I applied to Lord Jeffreys: I applied to Father Petre; and I paid them six thousand pounds for their services." "But did Lord Halifax take any money?" "No, I cannot say that he did." "And, Mr. Hampden, did not you afterwards send your wife to thank him for his kindness?" "Yes, I believe I did," answered Hampden; "but I know of no solid effects of that kindness. If there were any, I should be obliged to my Lord to tell me what they were." Disgraceful as had been the appearance which this degenerate heir of an illustrious name had made at the Old Bailey, the appearance which he made before the Committee of Murder was more disgraceful still, 547 It is pleasing to know that a person who had been far more cruelly wronged than he, but whose nature differed widely from his, the nobleminded Lady Russell, remonstrated against the injustice with which the extreme Whigs treated Halifax, 548

The malice of John Hampden, however, was unwearied and unabashed. A few days later, in a committee of the whole House of Commons on the state of the nation, he made a bitter speech, in which he ascribed all the disasters of the year to the influence of the men who had, in the days of the Exclusion Bill, been censured by Parliaments, of the men who had attempted to mediate between James and William. The King, he said, ought to dismiss from his counsels and presence all the three noblemen who had been sent to negotiate with him at Hungerford. He went on to speak of the danger of employing men of republican principles. He doubtless alluded to the chief object of his implacable malignity. For Halifax, though from temper averse to violent changes, was well known to be in speculation a republican, and often talked, with much ingenuity and pleasantry, against hereditary monarchy. The only effect, however, of the reflection now thrown on him was to call forth a roar of derision. That a Hampden, that the grandson of the great leader of the Long Parliament, that a man who boasted of having conspired with Algernon Sidney against the royal House, should use the word republican as a term of reproach! When the storm of laughter had subsided, several members stood up to vindicate the accused statesmen. Seymour declared that, much as he disapproved of the manner in which the administration had lately been conducted, he could not concur in the vote which John Hampden had proposed. "Look where you will," he said, "to Ireland, to Scotland, to the navy, to the army, you will find abundant proofs of mismanagement. If the war is still to be conducted by the same hands, we can expect nothing but a recurrence of the same disasters. But I am not prepared to proscribe men for the best thing that they ever did in their lives, to proscribe men for attempting to avert a revolution by timely mediation." It was justly said by another speaker that Halifax and Nottingham had been sent to the Dutch camp because they possessed the confidence of the nation, because they were universally known to be hostile to the dispensing power, to the Popish religion, and to the French ascendency. It was at length resolved that the King should be requested in general terms to find out and to remove the authors of the late miscarriages, 549 A committee was appointed to prepare an Address. John Hampden was chairman, and drew up a representation in terms so bitter that, when it was reported to the House, his own father expressed disapprobation, and one member exclaimed: "This an address! It is a libel." After a sharp debate, the Address was recommitted, and was not again mentioned, 550

Indeed, the animosity which a large part of the House had felt against Halifax was beginning to abate. It was known that, though he had not yet formally delivered up the Privy Seal, he had ceased to be a confidential adviser of the Crown. The power which he had enjoyed during the first months of the reign of William and Mary had passed to the more daring, more unscrupulous and more practical Caermarthen, against whose influence Shrewsbury contended in vain. Personally Shrewsbury stood high in the royal favour: but he was a leader of the Whigs, and, like all leaders of parties, was frequently pushed forward against his will by those who seemed to follow him. He was himself inclined to a mild and moderate policy: but he had not sufficient firmness to withstand the clamorous importunity with which such politicians as John Howe and John Hampden demanded vengeance on their enemies. His advice had therefore, at this time, little weight with his master, who neither loved the Tories nor trusted them, but who was fully determined not to proscribe them.

Meanwhile the Whigs, conscious that they had lately sunk in the opinion both of the King and of the nation, resolved on making a bold and crafty attempt to become independent of both. A perfect account of that attempt cannot be constructed out of the scanty and widely dispersed materials which have come down to us. Yet the story, as it has come down to us, is both interesting and instructive.

A bill for restoring the rights of those corporations which had surrendered their charters to the Crown during the last two reigns had been brought into the House of Commons, had been received with general applause by men of all parties, had been read twice, and had been referred to a select committee, of which Somers was chairman. On the second of January Somers brought up the report. The attendance of Tories was scanty: for, as no important discussion was expected, many country gentlemen had left town, and were keeping a merry Christmas by the chimney fires of their manor houses. The muster of zealous Whigs was strong. As soon as the bill had been reported, Sacheverell, renowned in the stormy parliaments of the reign of Charles the Second as one of the ablest and keenest of the Exclusionists, stood up and moved to add a clause providing that every municipal functionary who had in any manner been a party to the surrendering of the franchises of a borough should be incapable for seven years of holding any office in that borough. The constitution of almost every corporate town in England had been remodelled during that hot fit of loyalty which followed the detection of the Rye House Plot; and, in almost every corporate town, the voice of the Tories had been for delivering up the charter, and for trusting every thing to the paternal care of the Sovereign. The effect of Sacheverell's clause, therefore, was to make some thousands of the most opulent and highly considered men in the kingdom incapable, during seven years, of bearing any part in the government of the places in which they resided, and to secure to the Whig party, during seven years, an overwhelming influence in borough elections.

The minority exclaimed against the gross injustice of passing, rapidly and by surprise, at a season when London was empty, a law of the highest importance, a law which retrospectively inflicted a severe penalty on many hundreds of respectable gentlemen, a law which would call forth the strongest passions in every town from Berwick to St. Ives, a law which must have a serious effect on the composition of the House itself. Common decency required at least an adjournment. An adjournment was moved: but the motion was rejected by a hundred and twenty-seven votes to eighty-nine. The question was then put that Sacheverell's clause should stand part of the bill, and was carried by a hundred and thirty-three to sixty-eight. Sir Robert Howard immediately moved that every person who, being under Sacheverell's clause disqualified for municipal office, should presume to take any such office, should forfeit five hundred pounds, and should be for life incapable of holding any public employment whatever. The Tories did not venture to divide, 551 The rules of the House put it in the power of a minority to obstruct the progress of a bill; and this was assuredly one of the very rare occasions on which that power would have been with great propriety exerted. It does not appear, however, that the parliamentary tacticians of that age were aware of the extent to which a small number of members can, without violating any form, retard the course of business.

It was immediately resolved that the bill, enlarged by Sacheverell's and Howard's clauses, should be ingrossed. The most vehement Whigs were bent on finally passing it within forty-eight hours. The Lords, indeed, were not likely to regard it very favourably. But it should seem that some desperate men were prepared to withhold the supplies till it should pass, nay, even to tack it to the bill of supply, and thus to place the Upper House under the necessity of either consenting to a vast proscription of the Tories or refusing to the government the means of carrying on the war, 552 There were Whigs, however, honest enough to wish that fair play should be given to the hostile party, and prudent enough to know that an advantage obtained by violence and cunning could not be permanent. These men insisted that at least a week should be suffered to elapse before the third reading, and carried their point. Their less scrupulous associates complained bitterly that the good cause was betrayed. What new laws of war were these? Why was chivalrous courtesy to be shown to foes who thought no stratagem immoral, and who had never given quarter? And what had been done that was not in strict accordance with the law of Parliament? That law knew nothing of short notices and long notices, of thin houses and full houses. It was the business of a representative of the people to be in his place. If he chose to shoot and guzzle at his country seat when important business was under consideration at Westminster, what right had he to murmur because more upright and laborious servants of the public passed, in his absence, a bill which appeared to them necessary to the public safety? As however a postponement of a few days appeared to be inevitable, those who had intended to gain the victory by stealing a march now disclaimed that intention. They solemnly assured the King, who could not help showing some displeasure at their conduct, and who felt much more displeasure than he showed, that they had owed nothing to surprise, and that they were quite certain of a majority in the fullest house. Sacheverell is said to have declared with great warmth that he would stake his seat on the issue, and that if he found himself mistaken he would never show his face in Parliament again. Indeed, the general opinion at first was that the Whigs would win the day. But it soon became clear that the fight would be a hard one. The mails had carried out along all the high roads the tidings that, on the second of January, the Commons had agreed to a retrospective penal law against the whole Tory party, and that, on the tenth, that law would be considered for the last time. The whole kingdom was moved from Northumberland to Cornwall. A hundred knights and squires left their halls hung with mistletoe and holly, and their boards groaning with brawn and plum porridge, and rode up post to town, cursing the short days, the cold weather, the miry roads and the villanous Whigs. The Whigs, too, brought up reinforcements, but not to the same extent; for the clauses were generally unpopular, and not without good cause. Assuredly no reasonable man of any party will deny that the Tories, in surrendering to the Crown all the municipal franchises of the realm, and, with those franchises, the power of altering the constitution of the House of Commons, committed a great fault. But in that fault the nation itself had been an accomplice. If the Mayors and Aldermen whom it was now proposed to punish had, when the tide of loyal enthusiasm ran high, sturdily refused to comply with the wish of their Sovereign, they would have been pointed at in the street as Roundhead knaves, preached at by the Rector, lampooned in ballads, and probably burned in effigy before their own doors. That a community should be hurried into errors alternately by fear of tyranny and by fear of anarchy is doubtless a great evil. But the remedy for that evil is not to punish for such errors some persons who have merely erred with the rest, and who have since repented with the rest. Nor ought it to have been forgotten that the offenders against whom Sacheverell's clause was directed had, in 1688, made large atonement for the misconduct of which they had been guilty in 1683. They had, as a class, stood up firmly against the dispensing power; and most of them had actually been turned out of their municipal offices by James for refusing to support his policy. It is not strange therefore that the attempt to inflict on all these men without exception a degrading punishment should have raised such a storm of public indignation as many Whig members of parliament were unwilling to face.

As the decisive conflict drew near, and as the muster of the Tories became hourly stronger and stronger, the uneasiness of Sacheverell and of his confederates increased. They found that they could hardly hope for a complete victory. They must make some concession. They must propose to recommit the bill. They must declare themselves willing to consider whether any distinction could be made between the chief offenders and the multitudes who had been misled by evil example. But as the spirit of one party fell the spirit of the other rose. The Tories, glowing with resentment which was but too just, were resolved to listen to no terms of compromise.

The tenth of January came; and, before the late daybreak of that season, the House was crowded. More than a hundred and sixty members had come up to town within a week. From dawn till the candles had burned down to their sockets the ranks kept unbroken order; and few members left their seats except for a minute to take a crust of bread or a glass of claret. Messengers were in waiting to carry the result to Kensington, where William, though shaken by a violent cough, sate up till midnight, anxiously expecting the news, and writing to Portland, whom he had sent on an important mission to the Hague.

The only remaining account of the debate is defective and confused. But from that account it appears that the excitement was great. Sharp things were said. One young Whig member used language so hot that he was in danger of being called to the bar. Some reflections were thrown on the Speaker for allowing too much licence to his own friends. But in truth it mattered little whether he called transgressors to order or not. The House had long been quite unmanageable; and veteran members bitterly regretted the old gravity of debate and the old authority of the chair, 553 That Somers disapproved of the violence of the party to which he belonged may be inferred, both from the whole course of his public life, and from the very significant fact that, though he had charge of the Corporation Bill, he did not move the penal clauses, but left that ungracious office to men more impetuous and less sagacious than himself. He did not however abandon his allies in this emergency, but spoke for them, and tried to make the best of a very bad case. The House divided several times. On the first division a hundred and seventy-four voted with Sacheverell, a hundred and seventy-nine against him. Still the battle was stubbornly kept up; but the majority increased from five to ten, from ten to twelve, and from twelve to eighteen. Then at length, after a stormy sitting of fourteen hours, the Whigs yielded. It was near midnight when, to the unspeakable joy and triumph of the Tories, the clerk tore away from the parchment on which the bill had been engrossed the odious clauses of Sacheverell and Howard, 554

Emboldened by this great victory, the Tories made an attempt to push forward the Indemnity Bill which had lain many weeks neglected on the table, 555 But the Whigs, notwithstanding their recent defeat, were still the majority of the House; and many members, who had shrunk from the unpopularity which they would have incurred by supporting the Sacheverell clause and the Howard clause, were perfectly willing to assist in retarding the general pardon. They still propounded their favourite dilemma. How, they asked, was it possible to defend this project of amnesty without condemning the Revolution? Could it be contended that crimes which had been grave enough to justify resistance had not been grave enough to deserve punishment? And, if those crimes were of such magnitude that they could justly be visited on the Sovereign whom the Constitution had exempted from responsibility, on what principle was immunity to be granted to his advisers and tools, who were beyond all doubt responsible? One facetious member put this argument in a singular form. He contrived to place in the Speaker's chair a paper which, when examined, appeared to be a Bill of Indemnity for King James, with a sneering preamble about the mercy which had, since the Revolution, been extended to more heinous offenders, and about the indulgence due to a King, who, in oppressing his people, had only acted after the fashion of all Kings, 556

On the same day on which this mock Bill of Indemnity disturbed the gravity of the Commons, it was moved that the House should go into Committee on the real Bill. The Whigs threw the motion out by a hundred and ninety-three votes to a hundred and fifty-six. They then proceeded to resolve that a bill of pains and penalties against delinquents should be forthwith brought in, and engrafted on the Bill of Indemnity, 557

A few hours later a vote passed that showed more clearly than any thing that had yet taken place how little chance there was that the public mind would be speedily quieted by an amnesty. Few persons stood higher in the estimation of the Tory party than Sir Robert Sawyer. He was a man of ample fortune and aristocratical connections, of orthodox opinions and regular life, an able and experienced lawyer, a well read scholar, and, in spite of a little pomposity, a good speaker. He had been Attorney General at the time of the detection of the Rye House Plot; he had been employed for the Crown in the prosecutions which followed; and he had conducted those prosecutions with an eagerness which would, in our time, be called cruelty by all parties, but which, in his own time, and to his own party, seemed to be merely laudable zeal. His friends indeed asserted that he was conscientious even to scrupulosity in matters of life and death; 558 but this is an eulogy which persons who bring the feelings of the nineteenth century to the study of the State Trials of the seventeenth century will have some difficulty in understanding. The best excuse which can be made for this part of his life is that the stain of innocent blood was common to him with almost all the eminent public men of those evil days. When we blame him for prosecuting Russell, we must not forget that Russell had prosecuted Stafford.

Great as Sawyer's offences were, he had made great atonement for them. He had stood up manfully against Popery and despotism; he had, in the very presence chamber, positively refused to draw warrants in contravention of Acts of Parliament; he had resigned his lucrative office rather than appear in Westminster Hall as the champion of the dispensing power; he had been the leading counsel for the seven Bishops; and he had, on the day of their trial, done his duty ably, honestly, and fearlessly. He was therefore a favourite with High Churchmen, and might be thought to have fairly earned his pardon from the Whigs. But the Whigs were not in a pardoning mood; and Sawyer was now called to account for his conduct in the case of Sir Thomas Armstrong.

If Armstrong was not belied, he was deep in the worst secrets of the Rye House Plot, and was one of those who undertook to slay the two royal brothers. When the conspiracy was discovered, he fled to the Continent and was outlawed. The magistrates of Leyden were induced by a bribe to deliver him up. He was hurried on board of an English ship, carried to London, and brought before the King's Bench. Sawyer moved the Court to award execution on the outlawry. Armstrong represented that a year had not yet elapsed since he had been outlawed, and that, by an Act passed in the reign of Edward the Sixth, an outlaw who yielded himself within the year was entitled to plead Not Guilty, and to put himself on his country. To this it was answered that Armstrong had not yielded himself, that he had been dragged to the bar a prisoner, and that he had no right to claim a privilege which was evidently meant to be given only to persons who voluntarily rendered themselves up to public justice. Jeffreys and the other judges unanimously overruled Armstrong's objection, and granted the award of execution. Then followed one of the most terrible of the many terrible scenes which, in those times, disgraced our Courts. The daughter of the unhappy man was at his side. "My Lord," she cried out, "you will not murder my father. This is murdering a man." "How now?" roared the Chief Justice. "Who is this woman? Take her, Marshal. Take her away." She was forced out, crying as she went, "God Almighty's judgments light on you!" "God Almighty's judgment," said Jeffreys, "will light on traitors. Thank God, I am clamour proof." When she was gone, her father again insisted on what he conceived to be his right. "I ask" he said, "only the benefit of the law." "And, by the grace of God, you shall have it," said the judge. "Mr. Sheriff, see that execution be done on Friday next. There is the benefit of the law for you." On the following Friday, Armstrong was hanged, drawn and quartered; and his head was placed over Westminster Hall, 559

The insolence and cruelty of Jeffreys excite, even at the distance of so many years, an indignation which makes it difficult to be just to him. Yet a perfectly dispassionate inquirer may perhaps think it by no means clear that the award of execution was illegal. There was no precedent; and the words of the Act of Edward the Sixth may, without any straining, be construed as the Court construed them. Indeed, had the penalty been only fine or imprisonment, nobody would have seen any thing reprehensible in the proceeding. But to send a man to the gallows as a traitor, without confronting him with his accusers, without hearing his defence, solely because a timidity which is perfectly compatible with innocence has impelled him to hide himself, is surely a violation, if not of any written law, yet of those great principles to which all laws ought to conform. The case was brought before the House of Commons. The orphan daughter of Armstrong came to the bar to demand vengeance; and a warm debate followed. Sawyer was fiercely attacked and strenuously defended. The Tories declared that he appeared to them to have done only what, as counsel for the Crown, he was bound to do, and to have discharged his duty to God, to the King, and to the prisoner. If the award was legal, nobody was to blame; and, if the award was illegal, the blame lay, not with the Attorney General, but with the Judges. There would be an end of all liberty of speech at the bar, if an advocate was to be punished for making a strictly regular application to a Court, and for arguing that certain words in a statute were to be understood in a certain sense. The Whigs called Sawyer murderer, bloodhound, hangman. If the liberty of speech claimed by advocates meant the liberty of haranguing men to death, it was high time that the nation should rise up and exterminate the whole race of lawyers. "Things will never be well done," said one orator, "till some of that profession be made examples." "No crime to demand execution!" exclaimed John Hampden. "We shall be told next that it was no crime in the Jews to cry out 'Crucify him.'" A wise and just man would probably have been of opinion that this was not a case for severity. Sawyer's conduct might have been, to a certain extent, culpable: but, if an Act of Indemnity was to be passed at all, it was to be passed for the benefit of persons whose conduct had been culpable. The question was not whether he was guiltless, but whether his guilt was of so peculiarly black a dye that he ought, notwithstanding all his sacrifices and services, to be excluded by name from the mercy which was to be granted to many thousands of offenders. This question calm and impartial judges would probably have decided in his favour. It was, however, resolved that he should be excepted from the Indemnity, and expelled from the House, 560