that the power of the country party was there at that time almost irresistible. IIe therefore refused to pass the pardon. Still the impeachment must be stopped. He would not voluntarily resign. There was no desire of getting rid of a Chancellor usually so complying. Under such circumstances this most unworthy trick was practiced, devised by whom I know not,-but, I am ashamed to say, sanctioned by Nottingham. The pardon, being drawn up in proper form, was delivered to the King; Nottingham was summoned to Whitehall, and desired to bring the Great Seal with him. On his arrival, he was desired to seal the pardon. He begged leave respectfully to inform his Majesty that he had such scruples as to the regularity of granting a pardon pending a parliamentary impeachment, that he must be excused doing so without farther consideration. The King then took the Seal from him, and either affixed it to the pardon with his own hand, or caused this to be done by an officer of the Court acting under his orders. He then handed the pardon to the Earl of Danby, and taking up the Seal returned it to the Earl of Nottingham, saying, "Take it back, my Lord; I know not where to bestow it better."

The pardon being pleaded in bar of the further prosecution of the impeachment, the Commons were thrown into a fury, and appointed a select committee to inquire into the manner in which it had been granted. The committee finding no entry of the pardon in any of the public offices, requested information on the subject from the Lord Chancellor, who stated to them how “his Majesty commanded the Seal to be taken out of the bag, which his Lordship was obliged to submit unto it not being in his power to hinder and then writing his name on the top of the parchment, had the pardon sealed; and that at the very time of affixing the Seal to it, the parchment he did not look upon himself to have the custody of the Seal."* The Commons sent a message to the Lords demanding justice on the Earl of Danby, and an address to the King, complaining of the irregularity and illegality of the pardon.

Although Danby, after a temporary concealment, surrendered himself, and was committed to the Tower, where he lay under this charge five years-on account of the temporary introduction of Shaftesbury into the ministry, and the rapid events which followed till the dissolution of the Oxford parliament, the impeachment was not prosecuted, and the grand question which the plea in bar raised was never judicially determined. Nor was it even expressly set at rest by the Bill of Rights, notwithstanding a vote of the House of Commons at the time of the Revolution, that a pardon is not pleadable in bar of an impeachment. But at last, by the Act of Settlement, 12 & 13 W. 3. c. 2., it was enacted "That no pardon under the Great Seal of England be pleadable to an impeachment of the Commons in parliament." This restriction is necessary for discovering and exposing ministerial delinquency; but

* 4 Parl. Hist. 1114. 11 St. Tr. 766.

after conviction the power of pardon is vested in the Crown, to be exercised by responsible advisers,-where the prosecution has been by impeachment as well as in the name of the King,* although, according to the old law, where a capital prosecution was instituted by appeal at the suit of the party injured the prosecutor might pardon, but the King could not.†

It must have been an amusing sight, immediately after this controversy about Danby's pardon, during which Shaftesbury had vowed that "he would have Nottingham's head," to have seen the two sitting next each other in council, and seemingly on terms of cordiality. But they hated each other as much as ever, and secretly prepared for a rupture. Nottingham, not venturing openly to oppose Shaftesbury's Habeas Corpus Bill, in vain intrigued to have it thrown out, by the expedient of a difference between the two Houses, which had been so successfully worked against himself.

Hopes were entertained that Shaftesbury might now be prevailed upon to give up his Exclusion Bill; but he, feeling that his only chance of permanent power was to compel the King to take him for his sole minister, and to recognise Monmouth for his successor, thwarted the measures of Nottingham and the inner cabinet, and showed himself as hostile as ever to the Duke of York. It was no surprise to Nottingham, although it was to Shaftesbury, when the King, without any previous deliberation with the Council, suddenly turned round to him, and ordered him first to prepare a commission for proroguing parliament, and then a proclamation to dissolve it.*

Shaftesbury being immediately turned out of office, Nottingham and he for the rest of their days were at open and mortal enmity with each other.

CHAPTER XCIII.

CONCLUSION OF THE LIFE OF LORD NOTTINGHAM.

DURING the short parliament which met in October, 1680, Nottingham, under the Earl of Halifax, assisted the [A. D. 1680.] ministerial majority in the House of Lords to counteract the schemes of Shaftesbury, who made a stout fight in his own House, and dictated all the resolutions of the other. The Exclusion Bill being renewed in the Commons was followed up by addresses to remove Halifax and Seymour, who opposed it,

* After the conviction on impeachment of the six rebel lords in 1715, three of them were pardoned,

† 4 Bl. Com. 400,

Ante, p. 263.

and by impeachments of Scroggs, Jeffreys, and North, for their obstruction of the prosecution of the Duke of York as a Popish recusant, and their interference with the right of petitioning. In spite of Nottingham's very superior legal acquirements, Shaftesbury seems generally to have had the advantage over him in debate, even on constitutional questions,-the "Patriot” making up for his deficiency in knowledge by boldness of assertion and bitterness of sarcasm. The poor Lord Chancellor, leading such an uneasy life, must have very heartily concurred in the resolution to [JAN. 18, 1681.] put a sudden end to this parliament; and, thank[JAN. 18, 1681.] ful for the respite, must joyfully have pronounced the words by which it was dissolved, although another was summoned to meet at Oxford as a last experiment before laying parliaments entirely aside.

On the last day of the session he assisted the King in a most unworthy manœuvre,―to steal from the table a disagreeable Bill, which both Houses had passed "for the protection of Dissenters from being prosecuted for not going to their parish church,"-so that it was defeated without the odium of a public exercise of the royal veto.* This affair might have led to very serious consequences to the Chancellor if he had been questioned for it by a patriotic House of Commons, backed by an approving public; but the House of Commons was outrageously factious-the public were disgusted with it,-and he escaped.

When the Oxford Parliament met, fortune favoured him in eve[MARCH 21, 1681.] ry thing. The Commons took up with much eagerness the stealing of the Dissenters' Relief Bill; but they rejected with contumely all the King's proffered concessions to guard the reformed religion from the Popish successor by banishing him from the kingdom for life, and providing that the next Protestant heir should govern as Regent in his name ;—and, to defeat the government prosecution of their informer Fitzharris, they resolved that they would themselves impeach him for high treason before the House of Lords. This last was Shaftesbury's fatal blunder. A great many Protestant zealots still stuck by him for the "exclusion," while the more discerning members of his party now saw through his design of gaining power to himself by trying to establish the legitimacy of the Duke of Monmouth,-but nearly all were shocked by observing a capital prosecution sported with as an instrument of faction, and an attempt to try a commoner for his life before those who were not his peers.

Nottingham dexterously seized the advantage presented him, and advised the Lords to reject the impeachment, on the ground that Fitzharris, as a commoner, was entitled to be tried for this offence by a jury of commoners. We have a very imperfect report of his speech on this occasion; but he seems very successfully to

* Ante, p. 289.

have thrown odium on the House of Commons for betraying the rights of their constituents, under pretence of supporting their own privileges; and he brought forward, with prodigious effect, the precedent of the judgment on the murderers of Edward II., where it was declared in full parliament that commoners should not thereafter be tried on a capital charge by the House of Lords.* While the Commons voted the rejection of the impeachment "a denial of justice," the nation on this question took part with the Lords; and the sudden dissolution of [MARCH 28.] the parliament gave a decided victory to the Court.†

Here ended Nottingham's senatorial career, the King ruling by high prerogative alone during the rest of his reign.

[1680-1682.]

He had on two other occasions, which I have not mentioned, presided in the Lords as High Steward on the trial of Peers. The first was that of the Earl of Pembroke and Montgomery, for the murder of a Mr. Cony in an affray in a tavern. In a note to his MS. Reports, Nottingham has left an account of the ceremonial on this occasion, to which he seems to have attached great importance. Being come to the Lords' House, and retired to putt on my robes, after prayers said, wee adjourned the House into Westminster Hall, and went, in the order prescribed, through the Painted Chamber, Court of Requests, and Court of Wards, into the Hall. In which procession the Duke of York and Prince Rupert, to do honour to the King's Lieutenant (for so they called me), gave me the precedence, and suffered me to come last all the while, till the tryall was over and the white staff broken. When we came into Westminster Hall, the Court was prepared like the House of Peers in all points; with scaffolds on each side for the spectators, and a place for all the foreign ministers. So the Lords spirituall and temporall did quickly know their own places. I took my place upon the woolsack, near the cloth of state, but not directly under it, haveing first made my obeysance to the chaire, and then to the King and Queen, who satt by al incognito.”

The Lord High Steward is reported to have delivered a preliminary address to the noble prisoner, by way of encouraging him, which seems to have been in a strange taste: "Let not the disgrace of standing as a felon at the bar too much deject you; no man's credit can fall so low but that if he bear his shame as he should do, and profit by it as he ought to do, it is in his own power to redeem his reputation. Therefore let no man despair that desires and endeavours to recover himself again; much less let the terrors of justice affright you; for though your Lordship have great cause to fear, yet whatever may be lawfully hoped for, your Lordship may expect from the Peers."

Lord Pembroke, being found guilty of manslaughter, was dis

* See ante, p. 291. Hale's jurisdiction of the House of Lords, c. xiv.

† 4 Parl. Hist, 1298-1339.

Duke of Cambridge,-but he still went by his nom de guerre.

charged with an admonition, that upon a second conviction for the like offence he would be liable to be hanged.*

The other case occurred soon after, and excited considerable interest, being that of a minor peer, a school-boy, prosecuted for the murder of a companion, with whom he had quarrelled in the palace at Whitehall. The Lord High Steward's address, to encourage the accused, was again any thing but encouraging: "My Lord Cornwallis, the violation of the King's peace, in the chief sanctuary of it, his own royal palace, and in so high a manner as by the death of one of his subjects, is a matter that must be accounted for. It is your Lordship's great unhappiness, at this time, to stand prisoner at the bar under the weight of no less a charge than an indictment of murder. And it is not to be wondered at if so great a misfortune as this be attended with some sort of confusion of face; when a man sees himself become a spectacle of misery in so great a presence, and before so noble and so illustrious an assembly. But be not yet dismayed, my Lord, for all this: let not the terrors of justice so amaze and surprise you as to betray those succours that your reason would afford you, or to disarm you of those helps which good discretion may administer, and which are now so necessary. It is indeed a dreadful thing to fall into the hands of justice, where the law is the rule, and a severe and inflexible measure both of life and death."

It turned out, however, that the poor young Lord was hardly at all to blame; and notwithstanding strong speeches against him by Sir William Jones, the Attorney General, and old Serjeant Maynard, and that he was not allowed counsel to assist him, he was acquitted both of murder and manslaughter, to the great joy of the by-standers.†

Nottingham survived the dissolution of the Oxford parliament nearly two years, and, continuing Chancellor, is chiefly responsible for the unconstitutional system of government by which justice was perverted, and every institution was attacked which had a tendency to check the arbitrary will of the Sovereign. He sanctioned the execution of Fitzharris for publishing a libel, and of College," the Protestant joiner," for making violent speeches at public meetings;-he approved of the plan of wreaking the vengeance of the Court on the popular leaders, by prosecuting them for high treason;-he signed the warrant for the arrest of Shaftesbury, and his commitment to the Tower, on the unfounded charge of having conspired to control the King at Oxford by military violence; he kept his political opponent many months illegally imprisoned, refusing either to discharge him or to bring him to trial;and he concurred in the irregular attempts to prevail on a grand jury to find an indictment for high treason against him,intending, if the indictment had been found, to sit upon his trial as Lord High Steward, and, with the assistance of Peers to be se† 7 Ibid. 143.

*6 St. Tr. 1309.