Томас Бабингтон Маколей
The History of England, from the Accession of James II — Volume 3
In another minute Henderson fell pierced with three mortal wounds. His place was supplied by Captain Munro, and the contest went on with undiminished fury. A party of the Cameronians sallied forth, set fire to the houses from which the fatal shots had come, and turned the keys in the doors. In one single dwelling sixteen of the enemy were burnt alive. Those who were in the fight described it as a terrible initiation for recruits. Half the town was blazing; and with the incessant roar of the guns were mingled the piercing shrieks of wretches perishing in the flames. The struggle lasted four hours. By that time the Cameronians were reduced nearly to their last flask of powder; but their spirit never flagged. "The enemy will soon carry the wall. Be it so. We will retreat into the house: we will defend it to the last; and, if they force their way into it, we will burn it over their heads and our own." But, while they were revolving these desperate projects, they observed that the fury of the assault slackened. Soon the highlanders began to fall back: disorder visibly spread among them; and whole bands began to march off to the hills. It was in vain that their general ordered them to return to the attack. Perseverance was not one of their military virtues. The Cameronians meanwhile, with shouts of defiance, invited Amalek and Moab to come back and to try another chance with the chosen people. But these exhortations had as little effect as those of Cannon. In a short time the whole Gaelic army was in full retreat towards Blair. Then the drums struck up: the victorious Puritans threw their caps into the air, raised, with one voice, a psalm of triumph and thanksgiving, and waved their colours, colours which were on that day unfurled for the first time in the face of an enemy, but which have since been proudly borne in every quarter of the world, and which are now embellished with the Sphinx and the Dragon, emblems of brave actions achieved in Egypt and in China, 379
The Cameronians had good reason to be joyful and thankful; for they had finished the rear. In the rebel camp all was discord and dejection. The Highlanders blamed Cannon: Cannon blamed the Highlanders; and the host which had been the terror of Scotland melted fast away. The confederate chiefs signed an association by which they declared themselves faithful subjects of King James, and bound themselves to meet again at a future time. Having gone through this form,—for it was no more,—they departed, each to his home. Cannon and his Irishmen retired to the Isle of Mull. The Lowlanders who had followed Dundee to the mountains shifted for themselves as they best could. On the twenty-fourth of August, exactly four weeks after the Gaelic army had won the battle of Killiecrankie, that army ceased to exist. It ceased to exist, as the army of Montrose had, more than forty years earlier, ceased to exist, not in consequence of any great blow from without, but by a natural dissolution, the effect of internal malformation. All the fruits of victory were gathered by the vanquished. The Castle of Blair, which had been the immediate object of the contest, opened its gates to Mackay; and a chain of military posts, extending northward as far as Inverness, protected the cultivators of the plains against the predatory inroads of the mountaineers.
During the autumn the government was much more annoyed by the Whigs of the low country, than by the Jacobites of the hills. The Club, which had, in the late session of Parliament, attempted to turn the kingdom into an oligarchical republic, and which had induced the Estates to refuse supplies and to stop the administration of justice, continued to sit during the recess, and harassed the ministers of the Crown by systematic agitation. The organization of this body, contemptible as it may appear to the generation which has seen the Roman Catholic Association and the League against the Corn Laws, was then thought marvellous and formidable. The leaders of the confederacy boasted that they would force the King to do them right. They got up petitions and addresses, tried to inflame the populace by means of the press and the pulpit, employed emissaries among the soldiers, and talked of bringing up a large body of Covenanters from the west to overawe the Privy Council. In spite of every artifice, however, the ferment of the public mind gradually subsided. The Government, after some hesitation, ventured to open the Courts of justice which the Estates had closed. The Lords of Session appointed by the King took their seats; and Sir James Dalrymple presided. The Club attempted to induce the advocates to absent themselves from the bar, and entertained some hope that the mob would pull the judges from the bench. But it speedily became clear that there was much more likely to be a scarcity of fees than of lawyers to take them: the common people of Edinburgh were well pleased to see again a tribunal associated in their imagination with the dignity and prosperity of their city; and by many signs it appeared that the false and greedy faction which had commanded a majority of the legislature did not command a majority of the nation, 380
CHAPTER XIV
Disputes in the English Parliament—The Attainder of Russell reversed—Other Attainders reversed; Case of Samuel Johnson—Case of Devonshire—Case of Oates—Bill of Rights—Disputes about a Bill of Indemnity—Last Days of Jeffreys—The Whigs dissatisfied with the King—Intemperance of Howe—Attack on Caermarthen—Attack on Halifax—Preparations for a Campaign in Ireland—Schomberg—Recess of the Parliament—State of Ireland; Advice of Avaux—Dismission of Melfort; Schomberg lands in Ulster—Carrickfergus taken—Schomberg advances into Leinster; the English and Irish Armies encamp near each other—Schomberg declines a Battle—Frauds of the English Commissariat—Conspiracy among the French Troops in the English Service—Pestilence in the English Army—The English and Irish Armies go into Winter Quarters—Various Opinions about Schomberg's Conduct—Maritime Affairs—Maladministration of Torrington—Continental Affairs—Skirmish at Walcourt—Imputations thrown on Marlborough—Pope Innocent XI. succeeded by Alexander VIII.—The High Church Clergy divided on the Subject of the Oaths—Arguments for taking the Oaths—Arguments against taking the Oaths—A great Majority of the Clergy take the Oaths—The Nonjurors; Ken—Leslie—Sherlock—Hickes—Collier—Dodwell—Kettlewell; Fitzwilliam—General Character of the Nonjuring Clergy—The Plan of Comprehension; Tillotson—An Ecclesiastical Commission issued.—Proceedings of the Commission—The Convocation of the Province of Canterbury summoned; Temper of the Clergy—The Clergy ill affected towards the King—The Clergy exasperated against the Dissenters by the Proceedings of the Scotch Presbyterians—Constitution of the Convocation—Election of Members of Convocation; Ecclesiastical Preferments bestowed,—Compton discontented—The Convocation meets—The High Churchmen a Majority of the Lower House of Convocation—Difference between the two Houses of Convocation—The Lower House of Convocation proves unmanageable.—The Convocation prorogued
TWENTY-four hours before the war in Scotland was brought to a close by the discomfiture of the Celtic army at Dunkeld, the Parliament broke up at Westminster. The Houses had sate ever since January without a recess. The Commons, who were cooped up in a narrow space, had suffered severely from heat and discomfort; and the health of many members had given way. The fruit however had not been proportioned to the toil. The last three months of the session had been almost entirely wasted in disputes, which have left no trace in the Statute Book. The progress of salutary laws had been impeded, sometimes by bickerings between the Whigs and the Tories, and sometimes by bickerings between the Lords and the Commons.
The Revolution had scarcely been accomplished when it appeared that the supporters of the Exclusion Bill had not forgotten what they had suffered during the ascendancy of their enemies, and were bent on obtaining both reparation and revenge. Even before the throne was filled, the Lords appointed a committee to examine into the truth of the frightful stories which had been circulated concerning the death of Essex. The committee, which consisted of zealous Whigs, continued its inquiries till all reasonable men were convinced that he had fallen by his own hand, and till his wife, his brother, and his most intimate friends were desirous that the investigation should be carried no further, 381 Atonement was made, without any opposition on the part of the Tories, to the memory and the families of some other victims, who were themselves beyond the reach of human power. Soon after the Convention had been turned into a Parliament, a bill for reversing the attainder of Lord Russell was presented to the peers, was speedily passed by them, was sent down to the Lower House, and was welcomed there with no common signs of emotion. Many of the members had sate in that very chamber with Russell. He had long exercised there an influence resembling the influence which, within the memory of this generation, belonged to the upright and benevolent Althorpe; an influence derived, not from superior skill in debate or in declamation, but from spotless integrity, from plain good sense, and from that frankness, that simplicity, that good nature, which are singularly graceful and winning in a man raised by birth and fortune high above his fellows. By the Whigs Russell had been honoured as a chief; and his political adversaries had admitted that, when he was not misled by associates less respectable and more artful than himself, he was as honest and kindhearted a gentleman as any in England. The manly firmness and Christian meekness with which he had met death, the desolation of his noble house, the misery of the bereaved father, the blighted prospects of the orphan children, 382 above all, the union of womanly tenderness and angelic patience in her who had been dearest to the brave sufferer, who had sate, with the pen in her hand, by his side at the bar, who had cheered the gloom of his cell, and who, on his last day, had shared with him the memorials of the great sacrifice, had softened the hearts of many who were little in the habit of pitying an opponent. That Russell had many good qualities, that he had meant well, that he had been hardly used, was now admitted even by courtly lawyers who had assisted in shedding his blood, and by courtly divines who had done their worst to blacken his reputation. When, therefore, the parchment which annulled his sentence was laid on the table of that assembly in which, eight years before, his face and his voice had been so well known, the excitement was great. One old Whig member tried to speak, but was overcome by his feelings. "I cannot," he said, "name my Lord Russell without disorder. It is enough to name him. I am not able to say more." Many eyes were directed towards that part of the house where Finch sate. The highly honourable manner in which he had quitted a lucrative office, as soon as he had found that he could not keep it without supporting the dispensing power, and the conspicuous part which he had borne in the defence of the Bishops, had done much to atone for his faults. Yet, on this day, it could not be forgotten that he had strenuously exerted himself, as counsel for the Crown, to obtain that judgment which was now to be solemnly revoked. He rose, and attempted to defend his conduct: but neither his legal acuteness, nor that fluent and sonorous elocution which was in his family a hereditary gift, and of which none of his family had a larger share than himself, availed him on this occasion. The House was in no humour to hear him, and repeatedly interrupted him by cries of "Order." He had been treated, he was told, with great indulgence. No accusation had been brought against him. Why then should he, under pretence of vindicating himself, attempt to throw dishonourable imputations on an illustrious name, and to apologise for a judicial murder? He was forced to sit dorm, after declaring that he meant only to clear himself from the charge of having exceeded the limits of his professional duty; that he disclaimed all intention of attacking the memory of Lord Russell; and that he should sincerely rejoice at the reversing of the attainder. Before the House rose the bill was read a second time, and would have been instantly read a third time and passed, had not some additions and omissions been proposed, which would, it was thought, make the reparation more complete. The amendments were prepared with great expedition: the Lords agreed to them; and the King gladly gave his assent, 383
This bill was soon followed by three other bills which annulled three wicked and infamous judgments, the judgment against Sidney, the judgment against Cornish, and the judgment against Alice Lisle, 384
Some living Whigs obtained without difficulty redress for injuries which they had suffered in the late reign. The sentence of Samuel Johnson was taken into consideration by the House of Commons. It was resolved that the scourging which he had undergone was cruel, and that his degradation was of no legal effect. The latter proposition admitted of no dispute: for he had been degraded by the prelates who had been appointed to govern the diocese of London during Compton's suspension. Compton had been suspended by a decree of the High Commission, and the decrees of the High Commission were universally acknowledged to be nullities. Johnson had therefore been stripped of his robe by persons who had no jurisdiction over him. The Commons requested the king to compensate the sufferer by some ecclesiastical preferment, 385 William, however, found that he could not, without great inconvenience, grant this request. For Johnson, though brave, honest and religious, had always been rash, mutinous and quarrelsome; and, since he had endured for his opinions a martyrdom more terrible than death, the infirmities of his temper and understanding had increased to such a degree that he was as disagreeable to Low Churchmen as to High Churchmen. Like too many other men, who are not to be turned from the path of right by pleasure, by lucre or by danger, he mistook the impulses of his pride and resentment for the monitions of conscience, and deceived himself into a belief that, in treating friends and foes with indiscriminate insolence and asperity, he was merely showing his Christian faithfulness and courage. Burnet, by exhorting him to patience and forgiveness of injuries, made him a mortal enemy. "Tell His Lordship," said the inflexible priest, "to mind his own business, and to let me look after mine." 386 It soon began to be whispered that Johnson was mad. He accused Burnet of being the author of the report, and avenged himself by writing libels so violent that they strongly confirmed the imputation which they were meant to refute. The King, therefore, thought it better to give out of his own revenue a liberal compensation for the wrongs which the Commons had brought to his notice than to place an eccentric and irritable man in a situation of dignity and public trust. Johnson was gratified with a present of a thousand pounds, and a pension of three hundred a year for two lives. His son was also provided for in the public service, 387
While the Commons were considering the case of Johnson, the Lords were scrutinising with severity the proceedings which had, in the late reign, been instituted against one of their own order, the Earl of Devonshire. The judges who had passed sentence on him were strictly interrogated; and a resolution was passed declaring that in his case the privileges of the peerage had been infringed, and that the Court of King's Bench, in punishing a hasty blow by a fine of thirty thousand pounds, had violated common justice and the Great Charter, 388
In the cases which have been mentioned, all parties seem to have agreed in thinking that some public reparation was due. But the fiercest passions both of Whigs and Tories were soon roused by the noisy claims of a wretch whose sufferings, great as they might seem, had been trifling when compared with his crimes. Gates had come back, like a ghost from the place of punishment, to haunt the spots which had been polluted by his guilt. The three years and a half which followed his scourging he had passed in one of the cells of Newgate, except when on certain days, the anniversaries of his perjuries, he had been brought forth and set on the pillory. He was still, however, regarded by many fanatics as a martyr; and it was said that they were able so far to corrupt his keepers that, in spite of positive orders from the government, his sufferings were mitigated by many indulgences. While offenders, who, compared with him, were innocent, grew lean on the prison allowance, his cheer was mended by turkeys and chines, capons and sucking pigs, venison pasties and hampers of claret, the offerings of zealous Protestants, 389 When James had fled from Whitehall, and when London was in confusion, it was moved, in the council of Lords which had provisionally assumed the direction of affairs, that Gates should be set at liberty. The motion was rejected: 390 but the gaolers, not knowing whom to obey in that time of anarchy, and desiring to conciliate a man who had once been, and might perhaps again be, a terrible enemy, allowed their prisoner to go freely about the town, 391 His uneven legs and his hideous face, made more hideous by the shearing which his ears had undergone, were now again seen every day in Westminster Hall and the Court of Requests, 392 He fastened himself on his old patrons, and, in that drawl which he affected as a mark of gentility, gave them the history of his wrongs and of his hopes. It was impossible, he said, that now, when the good cause was triumphant, the discoverer of the plot could be overlooked. "Charles gave me nine hundred pounds a year. Sure William will give me more." 393
In a few weeks he brought his sentence before the House of Lords by a writ of error. This is a species of appeal which raises no question of fact. The Lords, while sitting judicially on the writ of error, were not competent to examine whether the verdict which pronounced Gates guilty was or was not according to the evidence. All that they had to consider was whether, the verdict being supposed to be according to the evidence, the judgment was legal. But it would have been difficult even for a tribunal composed of veteran magistrates, and was almost impossible for an assembly of noblemen who were all strongly biassed on one side or on the other, and among whom there was at that time not a single person whose mind had been disciplined by the study of jurisprudence, to look steadily at the mere point of law, abstracted from the special circumstances of the case. In the view of one party, a party which even among the Whig peers was probably a minority, the appellant was a man who had rendered inestimable services to the cause of liberty and religion, and who had been requited by long confinement, by degrading exposure, and by torture not to be thought of without a shudder. The majority of the House more justly regarded him as the falsest, the most malignant and the most impudent being that had ever disgraced the human form. The sight of that brazen forehead, the accents of that lying tongue, deprived them of all mastery over themselves. Many of them doubtless remembered with shame and remorse that they had been his dupes, and that, on the very last occasion on which he had stood before them, he had by perjury induced them to shed the blood of one of their own illustrious order. It was not to be expected that a crowd of gentlemen under the influence of feelings like these would act with the cold impartiality of a court of justice. Before they came to any decision on the legal question which Titus had brought before them, they picked a succession of quarrels with him. He had published a paper magnifying his merits and his sufferings. The Lords found out some pretence for calling this publication a breach of privilege, and sent him to the Marshalsea. He petitioned to be released; but an objection was raised to his petition. He had described himself as a Doctor of Divinity; and their lordships refused to acknowledge him as such. He was brought to their bar, and asked where he had graduated. He answered, "At the university of Salamanca." This was no new instance of his mendacity and effrontery. His Salamanca degree had been, during many years, a favourite theme of all the Tory satirists from Dryden downwards; and even on the Continent the Salamanca Doctor was a nickname in ordinary use, 394 The Lords, in their hatred of Oates, so far forgot their own dignity as to treat this ridiculous matter seriously. They ordered him to efface from his petition the words, "Doctor of Divinity." He replied that he could not in conscience do it; and he was accordingly sent back to gaol, 395
These preliminary proceedings indicated not obscurely what the fate of the writ of error would be. The counsel for Oates had been heard. No counsel appeared against him. The judges were required to give their opinions. Nine of them were in attendance; and among the nine were the Chiefs of the three Courts of Common Law. The unanimous answer of these grave, learned and upright magistrates was that the Court of King's Bench was not competent to degrade a priest from his sacred office, or to pass a sentence of perpetual imprisonment; and that therefore the judgment against Oates was contrary to law, and ought to be reversed. The Lords should undoubtedly have considered themselves as bound by this opinion. That they knew Oates to be the worst of men was nothing to the purpose. To them, sitting as a court of justice, he ought to have been merely a John of Styles or a John of Nokes. But their indignation was violently excited. Their habits were not those which fit men for the discharge of judicial duties. The debate turned almost entirely on matters to which no allusion ought to have been made. Not a single peer ventured to affirm that the judgment was legal: but much was said about the odious character of the appellant, about the impudent accusation which he had brought against Catherine of Braganza, and about the evil consequences which might follow if so bad a man were capable of being a witness. "There is only one way," said the Lord President, "in which I can consent to reverse the fellow's sentence. He has been whipped from Aldgate to Tyburn. He ought to be whipped from Tyburn back to Aldgate." The question was put. Twenty-three peers voted for reversing the judgment; thirty-five for affirming it, 396
This decision produced a great sensation, and not without reason. A question was now raised which might justly excite the anxiety of every man in the kingdom. That question was whether the highest tribunal, the tribunal on which, in the last resort, depended the most precious interests of every English subject, was at liberty to decide judicial questions on other than judicial grounds, and to withhold from a suitor what was admitted to be his legal right, on account of the depravity of his moral character. That the supreme Court of Appeal ought not to be suffered to exercise arbitrary power, under the forms of ordinary justice, was strongly felt by the ablest men in the House of Commons, and by none more strongly than by Somers. With him, and with those who reasoned like him, were, on this occasion, allied many weak and hot-headed zealots who still regarded Oates as a public benefactor, and who imagined that to question the existence of the Popish plot was to question the truth of the Protestant religion. On the very morning after the decision of the Peers had been pronounced, keen reflections were thrown, in the House of Commons, on the justice of their lordships. Three days later, the subject was brought forward by a Whig Privy Councillor, Sir Robert Howard, member for Castle Rising. He was one of the Berkshire branch of his noble family, a branch which enjoyed, in that age, the unenviable distinction of being wonderfully fertile of bad rhymers. The poetry of the Berkshire Howards was the jest of three generations of satirists. The mirth began with the first representation of the Rehearsal, and continued down to the last edition of the Dunciad, 397 But Sir Robert, in spite of his bad verses, and of some foibles and vanities which had caused him to be brought on the stage under the name of Sir Positive Atall, had in parliament the weight which a stanch party man, of ample fortune, of illustrious name, of ready utterance, and of resolute spirit, can scarcely fail to possess, 398 When he rose to call the attention of the Commons to the case of Oates, some Tories, animated by the same passions which had prevailed in the other House, received him with loud hisses. In spite of this most unparliamentary insult, he persevered; and it soon appeared that the majority was with him. Some orators extolled the patriotism and courage of Oates: others dwelt much on a prevailing rumour, that the solicitors who were employed against him on behalf of the Crown had distributed large sums of money among the jurymen. These were topics on which there was much difference of opinion. But that the sentence was illegal was a proposition which admitted of no dispute. The most eminent lawyers in the House of Commons declared that, on this point, they entirely concurred in the opinion given by the judges in the House of Lords. Those who had hissed when the subject was introduced, were so effectually cowed that they did not venture to demand a division; and a bill annulling the sentence was brought in, without any opposition, 399
The Lords were in an embarrassing situation. To retract was not pleasant. To engage in a contest with the Lower House, on a question on which that House was clearly in the right, and was backed at once by the opinions of the sages of the law, and by the passions of the populace, might be dangerous. It was thought expedient to take a middle course. An address was presented to the King, requesting him to pardon Oates, 400 But this concession only made bad worse. Titus had, like every other human being, a right to justice: but he was not a proper object of mercy. If the judgment against him was illegal, it ought to have been reversed. If it was legal, there was no ground for remitting any part of it. The Commons, very properly, persisted, passed their bill, and sent it up to the Peers. Of this bill the only objectionable part was the preamble, which asserted, not only that the judgment was illegal, a proposition which appeared on the face of the record to be true, but also that the verdict was corrupt, a proposition which, whether true or false, was not proved by any evidence at all.
The Lords were in a great strait. They knew that they were in the wrong. Yet they were determined not to proclaim, in their legislative capacity, that they had, in their judicial capacity, been guilty of injustice. They again tried a middle course. The preamble was softened down: a clause was added which provided that Oates should still remain incapable of being a witness; and the bill thus altered was returned to the Commons.
The Commons were not satisfied. They rejected the amendments, and demanded a free conference. Two eminent Tories, Rochester and Nottingham, took their seats in the Painted Chamber as managers for the Lords. With them was joined Burnet, whose well known hatred of Popery was likely to give weight to what he might say on such an occasion. Somers was the chief orator on the other side; and to his pen we owe a singularly lucid and interesting abstract of the debate.
The Lords frankly owned that the judgment of the Court of King's Bench could not be defended. They knew it to be illegal, and had known it to be so even when they affirmed it. But they had acted for the best. They accused Oates of bringing an impudently false accusation against Queen Catherine: they mentioned other instances of his villany; and they asked whether such a man ought still to be capable of giving testimony in a court of justice. The only excuse which, in their opinion, could be made for him was, that he was insane; and in truth, the incredible insolence and absurdity of his behaviour when he was last before them seemed to warrant the belief that his brain had been turned, and that he was not to be trusted with the lives of other men. The Lords could not therefore degrade themselves by expressly rescinding what they had done; nor could they consent to pronounce the verdict corrupt on no better evidence than common report.
The reply was complete and triumphant. "Oates is now the smallest part of the question. He has, Your Lordships say, falsely accused the Queen Dowager and other innocent persons. Be it so. This bill gives him no indemnity. We are quite willing that, if he is guilty, he shall be punished. But for him, and for all Englishmen, we demand that punishment shall be regulated by law, and not by the arbitrary discretion of any tribunal. We demand that, when a writ of error is before Your Lordships, you shall give judgment on it according to the known customs and statutes of the realm. We deny that you have any right, on such occasions, to take into consideration the moral character of a plaintiff or the political effect of a decision. It is acknowledged by yourselves that you have, merely because you thought ill of this man, affirmed a judgment which you knew to be illegal. Against this assumption of arbitrary power the Commons protest; and they hope that you will now redeem what you must feel to be an error. Your Lordships intimate a suspicion that Oates is mad. That a man is mad may be a very good reason for not punishing him at all. But how it can be a reason for inflicting on him a punishment which would be illegal even if he were sane, the Commons do not comprehend. Your Lordships think that you should not be justified in calling a verdict corrupt which has not been legally proved to be so. Suffer us to remind you that you have two distinct functions to perform. You are judges; and you are legislators. When you judge, your duty is strictly to follow the law. When you legislate, you may properly take facts from common fame. You invert this rule. You are lax in the wrong place, and scrupulous in the wrong place. As judges, you break through the law for the sake of a supposed convenience. As legislators, you will not admit any fact without such technical proof as it is rarely possible for legislators to obtain." 401
