But it is to be observed, that though in considering CHAP. I. the Bill of Exclusion, the Militia Bill, and other legislative proceedings, the plot, as he defines it, that is to say, the design of introducing Popery and arbitrary power, was the important point to be looked to; yet in courts of justice, and for juries and judges, that which he calls the appendage was, generally speaking, the sole consideration.

nation.

Although therefore, upon a review of this truly The proshocking transaction, we may be fairly justified in ceedings on it disgraceadopting the milder alternative, and in imputing to the ful to the greater part of those concerned in it, rather an extraordinary degree of blind credulity, than the deliberate wickedness of planning and assisting in the perpetration of legal murder; yet the proceedings on the Popish plot must always be considered as an indelible disgrace upon the English nation, in which King, Parliament, judges, juries, witnesses, prosecutors, have all their respective, though certainly not equal, shares. Witnesses, of such a character as not to deserve credit in the most trifling cause, upon the most immaterial facts, gave evidence so incredible, or, to speak more properly, so impossible to be true, that it ought not to have been believed if it had come from the mouth of Cato; and upon such evidence, from such witnesses, were innocent men condemned to death and executed. Prosecutors, whether attornies and solicitors-general, or managers of impeachment, acted with the fury which in such circumstances might be expected; juries partook naturally enough of the national ferment; and judges, whose duty it was to guard them against such impressions, were scandalously active in confirming them in their prejudices, and inflaming their passions. The King, who is supposed to have disbelieved the whole of the plot, never once exercised his glorious prerogative of mercy. It is said he dared not.

His

CHAP. I. throne, perhaps his life, was at stake; and history does not furnish us with the example of any monarch with whom the lives of innocent, or even meritorious, subjects ever appeared to be of much weight, when put in balance against such considerations.

Habeas Corpus Act. 1675.

The measures of the prevailing party in the House of Commons, in these times, appear, (with the exception of their dreadful proceedings in the business of the pretended plot, and of their violence towards those who petitioned and addressed against Parliament,) to have been, in general, highly laudable and meritorious; and yet I am afraid it may be justly suspected, that it was precisely to that part of their conduct which related to the plot, and which is most reprehensible, that they were indebted for their power to make the noble, and in some instances successful, struggles for liberty, which do so much honour to their memory. The danger to be apprehended from military force, being always, in the view of wise men, the most urgent, they first voted the disbanding of the army, and the two Houses passed a bill for that purpose, to which the King found himself obliged to consent. But to the bill which followed, for establishing the regular assembling of the militia, and for providing for their being in arms six weeks in the year, he opposed his royal negative; thus making his stand upon the same point on which his father had done; a circumstance which, if events had taken a turn against him, would not have failed of being much noticed by historians. Civil securities for freedom came to be afterwards considered; and it is to be remarked, that to these times of heat and passion, and to one of those parliaments, which so disgraced themselves and the nation, by the countenance given to Oates and Bedloe, and by the persecution of so many innocent victims, we are indebted for the Habeas Corpus Act, the most

INTRODUCTORY CHAPTER.

25

important barrier against tyranny, and best framed CHAP. I. protection for the liberty of individuals, that has ever existed in any ancient or modern commonwealth.

Bill.

1679.

But the inefficacy of mere laws in favour of the sub- Exclusion jects, in the case of the administration of them falling into the hands of persons hostile to the spirit in which they had been provided, had been so fatally evinced by the general history of England, ever since the grant of the Great Charter, and more especially by the transactions of the preceding reign, that the Parliament justly deemed their work incomplete, unless the Duke of York were excluded from the succession to the crown. A bill, therefore, for the purpose of excluding that prince, was prepared, and passed the House of Commons; but being vigorously resisted by the court, by the church, and by the Tories, was lost in the House of Lords. The restrictions offered by the King to be put upon a Popish successor are supposed to have been among the most powerful of those means to which he was indebted for his success.

The dispute was no longer, whether or not the dan- Observagers resulting from James's succession were real, and tions upon it. such as ought to be guarded against by parliamentary provisions; but whether the exclusion, or restrictions, furnished the most safe, and eligible mode of compassing the object which both sides pretended to have in view. The argument upon this state of the question is clearly, forcibly, and, I think, convincingly, stated by Rapin, who exposes very ably the extreme folly of trusting to measures, without consideration of the men who are to execute them. Even in Hume's statement of the question, whatever may have been his intention, the arguments in favour of the exclusion appear to me greatly to preponderate. Indeed it is not easy to conceive upon what principles even the Tories could justify their support of the restrictions. D·

26

INTRODUCTORY CHAPTER.

CHAP. I. Many among them, no doubt, saw the provisions in the same light in which the Whigs represented them, as an expedient admirably indeed adapted to the real object of upholding the present King's power, by the defeat of the exclusion, but never likely to take effect for their pretended purpose of controuling that of his successor; and supported them for that very reason. But such a principle of conduct was too fraudulent to be avowed; nor ought it perhaps, in candour, to be imputed to the majority of the party. To those who acted with good faith, and meant that the restrictions should really take place, and be effectual, surely it ought to have occurred, (and to those who most prized the prerogatives of the crown, it ought most forcibly to have occurred,) that in consenting to curtail the powers of the crown, rather than to alter the succession, they were adopting the greater, in order to avoid the lesser evil. The question of, what are to be the powers of the crown, is surely of superior importance to that of, who shall wear it? Those, at least, who consider the royal prerogative as vested in the King, not for his sake, but for that of his subjects, must consider the one of these questions as much above the other in dignity, as the rights of the public are more valuable than those of an individual. In this view the prerogatives of the crown are in substance and effect the rights of the people; and these rights of the people were not to be sacrificed to the purpose of preserving the succession to the most favoured prince, much less to one who, on account of his religious persuasion, was justly feared and suspected. In truth, the question between the exclusion and restrictions seems peculiarly calculated to ascertain the different views in which the different parties in this country have seen, and perhaps ever will see, the prerogatives of the crown. The Whigs, who consider them as a

trust for the people, a doctrine which the Tories them- CHAP. I. selves, when pushed in argument, will sometimes admit, naturally think it their duty rather to change the manager of the trust, than to impair the subject of it; while others, who consider them as the right or property of the King, will as naturally act as they would do in the case of any other property, and consent to the loss or annihilation of any part of it, for the purpose of preserving the remainder to him, whom they style the rightful owner. If the people be the sovereign, and the King the delegate, it is better to change the bailiff than to injure the farm; but if the King be the proprietor, it is better the farm should be impaired, nay, part of it destroyed, than that the whole should pass over to an usurper. The royal prerogative ought, according to the Whigs, (not in the case of a Popish successor only, but in all cases,) to be reduced to such powers as are in their exercise beneficial to the people; and of the benefit of these they will not rashly suffer the people to be deprived, whether the executive power be in the hands of an hereditary, or of an elected King; of a regent, or of any other denomination of magistrate; while on the other hand, they who consider prerogative with reference only to royalty, will, with equal readiness, consent either to the extension or the suspension of its exercise, as the occasional interests of the prince may seem to require. The senseless plea of a divine and indefeasable right in James, which even the legislature was incompetent to set aside, though as inconsistent with the declarations of Parliament in the Statute Book, and with the whole practice of the English Constitution, as it is repugnant to nature and common sense, was yet warmly insisted upon by the high-church party. Such an argument, as might naturally be expected, operated rather to provoke the Whigs to perseverance, than to dissuade