The History of England from the Accession of James II, Vol. 4

T >> Thomas Babington Macaulay >> The History of England from the Accession of James II, Vol. 4

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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.