my being an Englishman, or make me to have less title to Magna CHARTA and the other laws of English liberty. I desire your Lordships well to consider what rule you make in my case, for it will be a precedent that in future ages may concern every man in England."

Rainsford, C. J." This Court hath no jurisdiction of the cause, and therefore the form of the return is not considerable. We ought not to extend our jurisdiction beyond its due limits."*

Shaftesbury was remanded, and found himself in "a false position." He was, at first, visited in the Tower by all the factious; but an order was made that no one should be admitted to him without the King's express permission. He languished in the Tower without any prospect of getting himself liberated, and he had the mortification to learn that, meanwhile, in his absence, things were marvellously quiet in the House of Lords, and that Danby was carrying every thing before him. He in vain wrote spirited and pathetic letters to the King and the Duke of York, appealing to their justice and generosity.

At last, in February, 1678, he condescended to petition that he might be brought to the bar to apologise for the of

fence he had given. His application to the Court of [A. D. 1678.] King's Bench was now represented as the great aggravation of his crime, and Danby tried to shut him out from a hearing, on account of some contemptuous words respecting the House of Lords he was charged with then using-but the witness called could not prove them.

On his knees was the "Patriot" compelled to repeat, after the Lord Chancellor, the following mortifying palinode: "I, Anthony, Earl of Shaftesbury, do acknowledge that my endeavouring to maintain that the parliament is dissolved was an ill-advised action, for which I humbly beg the pardon of the King's Majesty, and of this most Honourable House; and I do also acknowledge that my bringing of a habeas corpus in the King's Bench was a high violation of your Lordships' privileges, and a great aggravation of my former offence, for which I likewise most humbly beg the pardon of this most Honourable House.”

The Lords, with white staves, were ordered to inform the King that the House was satisfied, and Shaftesbury was allowed to resume his seat.

[FEB. 27.]

During the short glimpse of power and favour which he enjoyed two years after, he contrived by a vote of the House of Lords to have all these proceedings condemned as unparliamentary and unconstitutional, "and that the entry of them on the Journals

* 6 St. Tr. 1296. The precedent hitherto has been respected. In the case of the Sheriffs of Middlesex, which occurred when I was Attorney General and a member of the House of Commons, I settled the warrant of commitment, and took care that it should be in this general form. Some observations were made by the Court of King's Bench as to the impropriety of preventing them from seeing the true cause of commitment; but they held it sufficient.

should be vacated, so that they might never be drawn into precedent for the future."*

Upon his discharge, he found his influence very much diminished. `Danby, whose policy in the race for popularity was to take the wind out of the sails of his competitor, had gained great popularity with the Protestants. The marriage of the Princess Mary, the eldest daughter of the Duke of York and next in succession to the Crown, with the Prince of Orange, now at the head of the protestant interest in Europe, had been followed up by the treaty of Nimeguen, which drew the protestant states into closer amity, and placed on a respectable footing the foreign relations of the country. Shaftesbury resumed his opposition with vigour, but down to the prorogation in the end of June, could find no opportunity of seriously embarrassing the measures of the government, and he agitated against the Duke of York and the Papists with little hope of ever again being the idol of a great party.†

This was only a lull; the hurricane soon burst forth; Shaftesbury directed it,—and he was more formidable than at any former period of his career.

CHAPTER LXXXIX.

CONTINUATION OF THE LIFE OF LORD SHAFTESBURY TILL THE DISSOLUTION OF THE OXFORD PARLIAMENT.

THE charge stoutly adduced against Shaftesbury of having been the inventor of the Popish plot, and of having sub[A. D. 1678.] orned Titus Oates to bring it forward, is unsupported by any reasonable evidence, and is, I think, wholly unfounded; but no one can deny that he early caught at this delusion as an engine of annoyance to his adversaries, and that he unscrupulously used it for his ambitious purposes, regardless of the ruin which it brought on individuals, and of the public calamities which it caused. As the monstrous improbability of the tale negatives the notion that he framed it, so it prevents us from supposing that he believed in it. Yet he pretended to give implicit credit to all its wildest fictions; he was mainly instrumental in propagating the general panic on the opportune murder of Sir Edmonsbury Godfrey; he joined in the cry that this worthy protestant magistrate had been assassinated by the Papists for having taken Oates's evidence; he suggested to the Londoners to prepare for the defence of the City, as if a foreign enemy were at its gates; and he was supposed to have suggested to Sir Thomas Player. the Chamberlain, the noted saying, "that were it not for these

* Lords' Jour. Nov. 13. 1680,

† 4 Parl. Hist. 977-1004.

precautions, all the protestant citizens might rise next morning with their throats cut."

On the meeting of parliament, Danby, that he might anticipate Shaftesbury, brought forward the subject of the Popish plot in the Lords, contrary to the advice of the [OCT. 21.] King, who said, "You will find you have given the parliament a handle to ruin yourself as well as to disturb all my affairs, and you will surely live to repent it." Shaftesbury soon took the matter entirely out of Danby's hands, and carried resolutions for a committee to inquire into the horrible conspiracy,-for the removal of Popish recusants from London,-for appointing the train-bands of London and Westminster to be in readiness,-for sending Lords Powis, Stafford, Arundel, Peters, and Bellasis to the Tower, as Papists and traitors, and for declaring "that there hath been and still is a damnable and hellish plot continued and carried on by Popish recusants for assassinating the King, subverting the government, and rooting out and destroying the Protestant religion."* He was chairman of the Committee of the House of Lords for prosecuting the inquiry; and, superseding the government who wished to conduct it, took the whole management of it into his own hands. He was always at his post-receiving informations, granting warrants for searches and arrests, examining and committing prisoners, and issuing instructions to officers, informers, and gaolers. He converted, with consummate art, every succeeding occurrence into a confirmation of the plot, and by inflaming the passions of the people was able to direct them at his pleasure. From being lately nearly isolated as a party-leader, and somewhat contemned for his inglorious release from imprisonment, the popular delirium now placed him at the head of a decided majority in both Houses, and the ministers were allowed to remain in office only till it suited his purpose to remove them.

He grossly abused the exorbitant power which he now enjoyed. His first measure was the bill for a Test by which Roman Catholics should be excluded from sitting in either House of parliament. He began it in the House of Commons, where it passed by acclamation. In the upper Ilouse there was a strong feeling with many in favour of the Roman Catholic Peers,--men of undoubted honour and loyalty,—and the representatives of the most illustrious families in England. The bill likewise caused alarm as an attack on the hereditary rights of the peerage; for if one class might be disqualified from acting in their legislative capacity for adhering to the religion of their ancestors, the same injustice might be done to others on some new pretext, and the whole body would depend upon the arbitrary will of the minister, or the capricious tyranny of the multitude, prompted by an unprincipled demagogue.

* 4 Parl. Hist. 1022.

Shaftesbury overcame these obstacles by the fresh discoveries of Titus Oates: and a clause being introduced into the Bill for excepting the Duke of York from its cperation, it received the royal assent.* * The injustice of this statute, which was passed in a moment of delusion and violence, could not be remedied for a period of 150 years; and still we continue to feel its mischievous consequences. If our Roman Catholic brethren had been allowed to sit in parliament as they had continued to do since the Reformation, the enmity between the followers of the two religions would probably soon have died away, and, all enjoying the same civil rights in England and in Ireland, all might have been equally attached to the law and constitution and we might have escaped the discords and jealousies which have long weakened the empire, and have sometimes threatened its dismemberment. This statute, so eagerly clung to by the pious and the orthodox as the safeguard of our religion, was undoubtedly the handywork of the profligate and sceptical Shaftesbury. He ere long made some compensation, by a law for securing personal liberty; but in estimating his merits, the disqualification of Roman Catholics to sit in parliament must be considered a tremendous set-off against "the Habeas Corpus Act."

The factious leader further moved in the House of Lords for an address to the King to remove the Duke of York from

[Nov. 4.] his presence and councils. This was defeated by

James getting up in his place and declaring that he had already ceased to be a member of the Privy Council;-whereupon the candid and virtuous Lord Russell was induced to withdraw a similar motion, which, from the purest motives, he had made in the Commons.t

To show the versatility of his powers, in the midst of these violent struggles he calmly delivered as Ex-chancellor, a character he felt it for his influence to maintain, a long and learned argument on the question argued at the bar in the Viscount Purbeck's case, "whether a peerage can be surrendered to the King?" He contended that Honours are not within the statute de Donis, and that the heir to the peerage could only lose his right by forfeiture, although the law of Scotland upon this subject was different. The house was guided by his opinion.‡

The trials now began-the most disgraceful in our judicial history-against those accused of being implicated in the Popish plot. Shaftesbury had only to look quietly on while Judge Scroggs and demented juries were eager to credit perjury, that they might convict innocent men whom they had prejudged.

Some victims being offered up to feed the popular fury, it was thought full time that Danby, the Lord Treasurer, should be precipitated from power. Montague, the ambassador at Paris, arrived

* 30 Car. 2. st. 2. 4 Parl. Hist, 1024.

Shower's Parl. Cases, p. 1.

† 4 Parl. Hist. 1025,

as a useful ally, and disclosing the secret negotiations with the court of France, a motion was carried in the House of Commons for Danby's impeachment for high treason. The King during some time stood by his minister, and, to procure him a respite, dissolved the parliament, that he might get rid of a Ilouse of Commons which, having sat nearly eighteen years, had entirely altered its character, and from being the most obsequious to the Court, had become one of the most formidable that had ever been assembled,-notwithstanding the notorious bribery practised to corrupt its members.* The state of the Exchequer rendered a parliament indispensable, and a new one was called, to meet in forty days. [JAN. 1679.] Shaftesbury was indefatigable in superintending the elections, and, as might easily have been anticipated, from the present ferment in the public mind, they turned out decidedly in his favour. Danby thought to avert the storm which was pending over him, by contriving that, before the opening of the session, the Duke of York should withdraw to Brussels; but the Court was beaten in the choice of a Speaker, and the King resorted to the ungracious exercise of the prerogative, of disallowing the Speaker elected by a majority of the House.

To stop it, a par

The impeachment was immediately revived. don was granted to the minister, to which the King affixed the Great Seal with his own hand; but [MARCH 20.] Shaftesbury maintained the doctrine, that a pardon cannot be pleaded in bar to a parliamentary impeachment, so as to prevent inquiry and sentence, although, after sentence, the Crown may remit the punishment. The Lords yielded to this doctrine, and issued a warrant to arrest the Earl of Danby. Upon this he absconded; and a bill was passed to attaint him, unless he should surrender. He did surrender, and Shaftesbury had the gratification of seeing his adversary sent off to the Tower on a capital charge. To leave the Court no breathing-time, he made a motion in the Lords, for a committee of the whole House on the state of the nation," which he prefaced with a [MARCH 25.] most inflammatory speech, in his peculiar style, on the danger to the Protestant faith:

"We have a little sister, and she hath no breasts; what shall we do for our sister in the day when she shall be spoken for? If she be a wall, we will build on her a palace of silver; if she be a door, we will inclose her with boards of cedar. We have several little sisters without breasts-the French Protestant churches; the two kingdoms of Ireland and Scotland. The forcign Protestants are a wall, the only wall and defence of England; upon it you may build palaces of silver, glorious palaces. The protection of the Protestants abroad is the greatest power and security the Crown of England can attain to, and which alone can help us to give check to the growing greatness of France. Scotland and Ireland