The History of England, from the Accession of James II — Volume 4

The Revolution produced, as was natural, some change in the sentiments of both the great parties. In the days when none but Roundheads and Nonconformists were accused of treason, even the most humane and upright Cavaliers were disposed to think that the laws which were the safeguard of the throne could hardly be too severe. But, as soon as loyal Tory gentlemen and venerable fathers of the Church were in danger of being called in question for corresponding with Saint Germains, a new light flashed on many understandings which had been unable to discover the smallest injustice in the proceedings against Algernon Sidney and Alice Lisle. It was no longer thought utterly absurd to maintain that some advantages which were withheld from a man accused of felony might reasonably be allowed to a man accused of treason. What probability was there that any sheriff would pack a jury, that any barrister would employ all the arts of sophistry and rhetoric, that any judge would strain law and misrepresent evidence, in order to convict an innocent person of burglary or sheep stealing? But on a trial for high treason a verdict of acquittal must always be considered as a defeat of the government; and there was but too much reason to fear that many sheriffs, barristers and judges might be impelled by party spirit, or by some baser motive, to do any thing which might save the government from the inconvenience and shame of a defeat. The cry of the whole body of Tories was that the lives of good Englishmen who happened to be obnoxious to the ruling powers were not sufficiently protected; and this cry was swelled by the voices of some lawyers who had distinguished themselves by the malignant zeal and dishonest ingenuity with which they had conducted State prosecutions in the days of Charles and James.

The feeling of the Whigs, though it had not, like the feeling of the Tories, undergone a complete change, was yet not quite what it had been. Some, who had thought it most unjust that Russell should have no counsel and that Cornish should have no copy of his indictment, now began to mutter that the times had changed; that the dangers of the State were extreme; that liberty, property, religion, national independence, were all at stake; that many Englishmen were engaged in schemes of which the object was to make England the slave of France and of Rome; and that it would be most unwise to relax, at such a moment, the laws against political offences. It was true that the injustice with which, in the late reigns, State trials had been conducted, had given great scandal. But this injustice was to be ascribed to the bad kings and bad judges with whom the nation had been cursed. William was now on the throne; Holt was seated for life on the bench; and William would never exact, nor would Holt ever perform, services so shameful and wicked as those for which the banished tyrant had rewarded Jeffreys with riches and titles. This language however was at first held but by few. The Whigs, as a party, seem to have felt that they could not honourably defend, in the season of their prosperity, what, in the time of their adversity, they had always designated as a crying grievance. A bill for regulating trials in cases of high treason was brought into the House of Commons, and was received with general applause. Treby had the courage to make some objections; but no division took place. The chief enactments were that no person should be convicted of high treason committed more than three years before the indictment was found; that every person indicted for high treason should be allowed to avail himself of the assistance of counsel, and should be furnished, ten days before the trial, with a copy of the indictment, and with a list of the freeholders from among whom the jury was to be taken; that his witnesses should be sworn, and that they should be cited by the same process by which the attendance of the witnesses against him was secured.

The Bill went to the Upper House, and came back with an important amendment. The Lords had long complained of the anomalous and iniquitous constitution of that tribunal which had jurisdiction over them in cases of life and death. When a grand jury has found a bill of indictment against a temporal peer for any offence higher than a misdemeanour, the Crown appoints a Lord High Steward; and in the Lord High Steward's Court the case is tried. This Court was anciently composed in two very different ways. It consisted, if Parliament happened to be sitting, of all the members of the Upper House. When Parliament was not sitting, the Lord High Steward summoned any twelve or more peers at his discretion to form a jury. The consequence was that a peer accused of high treason during a recess was tried by a jury which his prosecutors had packed. The Lords now demanded that, during a recess as well as during a session, every peer accused of high treason should be tried by the whole body of the peerage.

The demand was resisted by the House of Commons with a vehemence and obstinacy which men of the present generation may find it difficult to understand. The truth is that some invidious privileges of peerage which have since been abolished, and others which have since fallen into entire desuetude, were then in full force, and were daily used. No gentleman who had had a dispute with a nobleman could think, without indignation, of the advantages enjoyed by the favoured caste. If His Lordship were sued at law, his privilege enabled him to impede the course of justice. If a rude word were spoken of him, such a word as he might himself utter with perfect impunity, he might vindicate his insulted dignity both by civil and criminal proceedings. If a barrister, in the discharge of his duty to a client, spoke with severity of the conduct of a noble seducer, if an honest squire on the racecourse applied the proper epithets to the tricks of a noble swindler, the affronted patrician had only to complain to the proud and powerful body of which he was a member. His brethren made his cause their own. The offender was taken into custody by Black Rod, brought to the bar, flung into prison, and kept there till he was glad to obtain forgiveness by the most degrading submissions. Nothing could therefore be more natural than that an attempt of the Peers to obtain any new advantage for their order should be regarded by the Commons with extreme jealousy. There is strong reason to suspect that some able Whig politicians, who thought it dangerous to relax, at that moment, the laws against political offences, but who could not, without incurring the charge of inconsistency, declare themselves adverse to any relaxation, had conceived a hope that they might, by fomenting the dispute about the Court of the Lord High Steward, defer for at least a year the passing of a bill which they disliked, and yet could not decently oppose. If this really was their plan, it succeeded perfectly. The Lower House rejected the amendment; the Upper House persisted; a free conference was held; and the question was argued with great force and ingenuity on both sides.

The reasons in favour of the amendment are obvious, and indeed at first sight seem unanswerable. It was surely difficult to defend a system under which the Sovereign nominated a conclave of his own creatures to decide the fate of men whom he regarded as his mortal enemies. And could any thing be more absurd than that a nobleman accused of high treason should be entitled to be tried by the whole body of his peers if his indictment happened to be brought into the House of Lords the minute before a prorogation, but that, if the indictment arrived a minute after the prorogation, he should be at the mercy of a small junto named by the very authority which prosecuted him? That any thing could have been said on the other side seems strange; but those who managed the conference for the Commons were not ordinary men, and seem on this occasion to have put forth all their powers. Conspicuous among them was Charles Montague, who was rapidly attaining a foremost rank among the orators of that age. To him the lead seems on this occasion to have been left; and to his pen we owe an account of the discussion, which gives a very high notion of his talents for debate. "We have framed"—such was in substance his reasoning,—"we have framed a law which has in it nothing exclusive, a law which will be a blessing to every class, from the highest to the lowest. The new securities, which we propose to give to innocence oppressed by power, are common between the premier peer and the humblest day labourer. The clause which establishes a time of limitation for prosecutions protects us all alike. To every Englishman accused of the highest crime against the state, whatever be his rank, we give the privilege of seeing his indictment, the privilege of being defended by counsel, the privilege of having his witnesses summoned by writ of subpoena and sworn on the Holy Gospels. Such is the bill which we sent up to your Lordships; and you return it to us with a clause of which the effect is to give certain advantages to your noble order at the expense of the ancient prerogatives of the Crown. Surely before we consent to take away from the King any power which his predecessors have possessed for ages, and to give it to your Lordships, we ought to be satisfied that you are more likely to use it well than he. Something we must risk; somebody we must trust; and; since we are forced, much against our will, to institute what is necessarily an invidious comparison, we must own ourselves unable to discover any reason for believing that a prince is less to be trusted than an aristocracy.

"Is it reasonable, you ask, that you should be tried for your lives before a few members of your House, selected by the Crown? Is it reasonable, we ask in our turn, that you should have the privilege of being tried by all the members of your House, that is to say, by your brothers, your uncles, your first cousins, your second cousins, your fathers in law, your brothers in law, your most intimate friends? You marry so much into each other's families, you live so much in each other's society, that there is scarcely a nobleman who is not connected by consanguinity or affinity with several others, and who is not on terms of friendship with several more. There have been great men whose death put a third or fourth part of the baronage of England into mourning. Nor is there much danger that even those peers who may be unconnected with an accused lord will be disposed to send him to the block if they can with decency say 'Not Guilty, upon my honour.' For the ignominious death of a single member of a small aristocratical body necessarily leaves a stain on the reputation of his fellows. If, indeed, your Lordships proposed that every one of your body should be compelled to attend and vote, the Crown might have some chance of obtaining justice against a guilty peer, however strongly connected. But you propose that attendance shall be voluntary. Is it possible to doubt what the consequence will be? All the prisoner's relations and friends will be in their places to vote for him. Good nature and the fear of making powerful enemies will keep away many who, if they voted at all, would be forced by conscience and honour to vote against him. The new system which you propose would therefore evidently be unfair to the Crown; and you do not show any reason for believing that the old system has been found in practice unfair to yourselves. We may confidently affirm that, even under a government less just and merciful than that under which we have the happiness to live, an innocent peer has little to fear from any set of peers that can be brought together in Westminster Hall to try him. How stands the fact? In what single case has a guiltless head fallen by the verdict of this packed jury? It would be easy to make out a long list of squires, merchants, lawyers, surgeons, yeomen, artisans, ploughmen, whose blood, barbarously shed during the late evil times, cries for vengeance to heaven. But what single member of your House, in our days, or in the days of our fathers, or in the days of our grandfathers, suffered death unjustly by sentence of the Court of the Lord High Steward? Hundreds of the common people were sent to the gallows by common juries for the Rye House Plot and the Western Insurrection. One peer, and one alone, my Lord Delamere, was brought at that time before the Court of the Lord High Steward; and he was acquitted. But, it is said, the evidence against him was legally insufficient. Be it so. So was the evidence against Sidney, against Cornish, against Alice Lisle; yet it sufficed to destroy them. But, it is said, the peers before whom my Lord Delamere was brought were selected with shameless unfairness by King James and by Jeffreys. Be it so. But this only proves that, under the worst possible King, and under the worst possible High Steward, a lord tried by lords has a better chance for life than a commoner who puts himself on his country. We cannot, therefore, under the mild government which we now possess, feel much apprehension for the safety of any innocent peer. Would that we felt as little apprehension for the safety of that government! But it is notorious that the settlement with which our liberties are inseparably bound up is attacked at once by foreign and by domestic enemies. We cannot consent at such a crisis to relax the restraints which have, it may well be feared, already proved too feeble to prevent some men of high rank from plotting the ruin of their country. To sum up the whole, what is asked of us is that we will consent to transfer a certain power from their Majesties to your Lordships. Our answer is that, at this time, in our opinion, their Majesties have not too much power, and your Lordships have quite power enough."

These arguments, though eminently ingenious, and not without real force, failed to convince the Upper House. The Lords insisted that every peer should be entitled to be a Trier. The Commons were with difficulty induced to consent that the number of Triers should never be less than thirty-six, and positively refused to make any further concession. The bill was therefore suffered to drop. 184

It is certain that those who in the conference on this bill represented the Commons, did not exaggerate the dangers to which the government was exposed. While the constitution of the Court which was to try peers for treason was under discussion, a treason planned with rare skill by a peer was all but carried into execution.

Marlborough had never ceased to assure the Court of Saint Germains that the great crime which he had committed was constantly present to his thoughts, and that he lived only for the purpose of repentance and reparation. Not only had he been himself converted; he had also converted the Princess Anne. In 1688, the Churchills had, with little difficulty, induced her to fly from her father's palace. In 1691, they, with as little difficulty, induced her to copy out and sign a letter expressing her deep concern for his misfortunes and her earnest wish to atone for her breach of duty. 185 At the same time Marlborough held out hopes that it might be in his power to effect the restoration of his old master in the best possible way, without the help of a single foreign soldier or sailor, by the votes of the English Lords and Commons, and by the support of the English army. We are not fully informed as to all the details of his plan. But the outline is known to us from a most interesting paper written by James, of which one copy is in the Bodleian Library, and another among the archives of the French Foreign Office.

The jealousy with which the English regarded the Dutch was at this time intense. There had never been a hearty friendship between the nations. They were indeed near of kin to each other. They spoke two dialects of one widespread language. Both boasted of their political freedom. Both were attached to the reformed faith. Both were threatened by the same enemy, and would be safe only while they were united. Yet there was no cordial feeling between them. They would probably have loved each other more, if they had, in some respects, resembled each other less. They were the two great commercial nations, the two great maritime nations. In every sea their flags were found together, in the Baltic and in the Mediterranean, in the Gulf of Mexico and in the Straits of Malacca. Every where the merchant of London and the merchant of Amsterdam were trying to forestall each other and to undersell each other. In Europe the contest was not sanguinary. But too often, in barbarous countries, where there was no law but force, the competitors had met, burning with cupidity, burning with animosity, armed for battle, each suspecting the other of hostile designs and each resolved to give the other no advantage. In such circumstances it is not strange that many violent and cruel acts should have been perpetrated. What had been done in those distant regions could seldom be exactly known in Europe. Every thing was exaggerated and distorted by vague report and by national prejudice. Here it was the popular belief that the English were always blameless, and that every quarrel was to be ascribed to the avarice and inhumanity of the Dutch. Lamentable events which had taken place in the Spice Islands were repeatedly brought on our stage. The Englishmen were all saints and heroes; the Dutchmen all fiends in human shape, lying, robbing, ravishing, murdering, torturing. The angry passions which these pieces indicated had more than once found vent in war. Thrice in the lifetime of one generation the two nations had contended, with equal courage and with various fortune, for the sovereignty of the German Ocean. The tyranny of James, as it had reconciled Tories to Whigs and Churchmen to Nonconformists, had also reconciled the English to the Dutch. While our ancestors were looking to the Hague for deliverance, the massacre of Amboyna and the great humiliation of Chatham had seemed to be forgotten. But since the Revolution the old feeling had revived. Though England and Holland were now closely bound together by treaty, they were as far as ever from being bound together by affection. Once, just after the battle of Beachy Head, our countrymen had seemed disposed to be just; but a violent reaction speedily followed. Torrington, who deserved to be shot, became a popular favourite; and the allies whom he had shamefully abandoned were accused of persecuting him without a cause. The partiality shown by the King to the companions of his youth was the favourite theme of the sewers of sedition. The most lucrative posts in his household, it was said, were held by Dutchmen; the House of Lords was fast filling with Dutchmen; the finest manors of the Crown were given to Dutchmen; the army was commanded by Dutchmen. That it would have been wise in William to exhibit somewhat less obtrusively his laudable fondness for his native country, and to remunerate his early friends somewhat more sparingly, is perfectly true. But it will not be easy to prove that, on any important occasion during his whole reign, he sacrificed the interests of our island to the interests of the United Provinces. The English, however, were on this subject prone to fits of jealousy which made them quite incapable of listening to reason. One of the sharpest of those fits came on in the autumn of 1691. The antipathy to the Dutch was at that time strong in all classes, and nowhere stronger than in the Parliament and in the army. 186

Of that antipathy Marlborough determined to avail himself for the purpose, as he assured James and James's adherents, of effecting a restoration. The temper of both Houses was such that they might not improbably be induced by skilful management to present a joint address requesting that all foreigners might be dismissed from the service of their Majesties. Marlborough undertook to move such an address in the Lords; and there would have been no difficulty in finding some gentleman of great weight to make a similar motion in the Commons.

If the address should be carried, what could William do? Would he yield? Would he discard all his dearest, his oldest, his most trusty friends? It was hardly possible to believe that he would make so painful, so humiliating a concession. If he did not yield, there would be a rupture between him and the Parliament; and the Parliament would be backed by the people. Even a King reigning by a hereditary title might well shrink from such a contest with the Estates of the Realm. But to a King whose title rested on a resolution of the Estates of the Realm such a contest must almost necessarily be fatal. The last hope of William would be in the army. The army Marlborough undertook to manage; and it is highly probable that what he undertook he could have performed. His courage, his abilities, his noble and winning manners, the splendid success which had attended him on every occasion on which he had been in command, had made him, in spite of his sordid vices, a favourite with his brethren in arms. They were proud of having one countryman who had shown that he wanted nothing but opportunity to vie with the ablest Marshal of France. The Dutch were even more disliked by the English troops than by the English nation generally. Had Marlborough therefore, after securing the cooperation of some distinguished officers, presented himself at the critical moment to those regiments which he had led to victory in Flanders and in Ireland, had he called on them to rally round him, to protect the Parliament, and to drive out the aliens, there is strong reason to think that the call would have been obeyed. He would then have had it in his power to fulfil the promises which he had so solemnly made to his old master.

Of all the schemes ever formed for the restoration of James or of his descendants, this scheme promised the fairest. That national pride, that hatred of arbitrary power, which had hitherto been on William's side, would now be turned against him. Hundreds of thousands who would have put their lives in jeopardy to prevent a French army from imposing a government on the English, would have felt no disposition to prevent an English army from driving out the Dutch. Even the Whigs could scarcely, without renouncing their old doctrines, support a prince who obstinately refused to comply with the general wish of his people signified to him by his Parliament. The plot looked well. An active canvass was made. Many members of the House of Commons, who did not at all suspect that there was any ulterior design, promised to vote against the foreigners. Marlborough was indefatigable in inflaming the discontents of the army. His house was constantly filled with officers who heated each other into fury by talking against the Dutch. But, before the preparations were complete, a strange suspicion rose in the minds of some of the Jacobites. That the author of this bold and artful scheme wished to pull down the existing government there could be little doubt. But was it quite certain what government he meant to set up? Might he not depose William without restoring James? Was it not possible that a man so wise, so aspiring, and so wicked, might be meditating a double treason, such as would have been thought a masterpiece of statecraft by the great Italian politicians of the fifteenth century, such as Borgia would have envied, such as Machiavel would have extolled to the skies?

What if this consummate dissembler should cheat both the rival kings? What if, when he found himself commander of the army and protector of the Parliament, he should proclaim Queen Anne? Was it not possible that the weary and harassed nation might gladly acquiesce in such a settlement? James was unpopular because he was a Papist, influenced by Popish priests. William was unpopular because he was a foreigner, attached to foreign favourites. Anne was at once a Protestant and an Englishwoman. Under her government the country would be in no danger of being overrun either by Jesuits or by Dutchmen. That Marlborough had the strongest motives for placing her on the throne was evident. He could never, in the court of her father, be more than a repentant criminal, whose services were overpaid by a pardon. In her court the husband of her adored friend would be what Pepin Heristal and Charles Martel had been to the Chilperics and Childeberts. He would be the chief director of the civil and military government. He would wield the whole power of England. He would hold the balance of Europe. Great kings and commonwealths would bid against each other for his favour, and exhaust their treasuries in the vain hope of satiating his avarice. The presumption was, therefore, that, if he had the English crown in his hands, he would put in on the head of the Princess. What evidence there was to confirm this presumption is not known; but it is certain that something took place which convinced some of the most devoted friends of the exiled family that he was meditating a second perfidy, surpassing even the feat which he had performed at Salisbury. They were afraid that if, at that moment, they succeeded in getting rid of William, the situation of James would be more hopeless than ever. So fully were they persuaded of the duplicity of their accomplice, that they not only refused to proceed further in the execution of the plan which he had formed, but disclosed his whole scheme to Portland.