The interest of his wife's family was
undoubtedly
more than sufficient
to obtain a pardon for him.
to obtain a pardon for him.
Macaulay
Meanwhile the Athenian, the Corinthian, the
Argive, the Theban, gave his chief attention to his oliveyard or his
vineyard, his warehouse or his workshop, and took up his shield and
spear only for short terms and at long intervals. The difference
therefore between a Lacedaemonian phalanx and any other phalanx was long
as great as the difference between a regiment of the French household
troops and a regiment of the London trainbands. Lacedaemon consequently
continued to be dominant in Greece till other states began to employ
regular troops. Then her supremacy was at an end. She was great while
she was a standing army among militias. She fell when she had to contend
with other standing armies. The lesson which is really to be learned
from her ascendency and from her decline is this, that the occasional
soldier is no match for the professional soldier. [2]
The same lesson Somers drew from the history of Rome; and every scholar
who really understands that history will admit that he was in the right.
The finest militia that ever existed was probably that of Italy in the
third century before Christ. It might have been thought that seven
or eight hundred thousand fighting men, who assuredly wanted neither
natural courage nor public spirit, would have been able to protect their
own hearths and altars against an invader. An invader came, bringing
with him an army small and exhausted by a march over the snows of the
Alps, but familiar with battles and sieges. At the head of this army
he traversed the peninsula to and fro, gained a succession of victories
against immense numerical odds, slaughtered the hardy youth of Latium
like sheep, by tens of thousands, encamped under the walls of Rome,
continued during sixteen years to maintain himself in a hostile country,
and was never dislodged till he had by a cruel discipline gradually
taught his adversaries how to resist him.
It was idle to repeat the names of great battles won, in the middle
ages, by men who did not make war their chief calling; those battles
proved only that one militia might beat another, and not that a militia
could beat a regular army. As idle was it to declaim about the camp
at Tilbury. We had indeed reason to be proud of the spirit which all
classes of Englishmen, gentlemen and yeomen, peasants and burgesses,
had so signally displayed in the great crisis of 1588. But we had also
reason to be thankful that, with all their spirit, they were not brought
face to face with the Spanish battalions. Somers related an anecdote,
well worthy to be remembered, which had been preserved by tradition
in the noble house of De Vere. One of the most illustrious men of that
house, a captain who had acquired much experience and much fame in the
Netherlands, had, in the crisis of peril, been summoned back to England
by Elizabeth, and rode with her through the endless ranks of shouting
pikemen. She asked him what he thought of the army. "It is," he said, "a
brave army. " There was something in his tone or manner which showed
that he meant more than his words expressed. The Queen insisted on his
speaking out. "Madam," he said, "Your Grace's army is brave indeed. I
have not in the world the name of a coward, and yet I am the greatest
coward here. All these fine fellows are praying that the enemy may land,
and that there may be a battle; and I, who know that enemy well, cannot
think of such a battle without dismay. " De Vere was doubtless in the
right. The Duke of Parma, indeed, would not have subjected our country;
but it is by no means improbable that, if he had effected a landing,
the island would have been the theatre of a war greatly resembling that
which Hannibal waged in Italy, and that the invaders would not have been
driven out till many cities had been sacked, till many counties had been
wasted, and till multitudes of our stout-hearted rustics and artisans
had perished in the carnage of days not less terrible than those of
Thrasymene and Cannae.
While the pamphlets of Trenchard and Somers were in every hand, the
Parliament met.
The words with which the King opened the session brought the great
question to a speedy issue. "The circumstances," he said, "of affairs
abroad are such, that I think myself obliged to tell you my opinion,
that, for the present, England cannot be safe without a land force;
and I hope we shall not give those that mean us ill the opportunity of
effecting that under the notion of a peace which they could not bring to
pass by war. "
The speech was well received; for that Parliament was thoroughly well
affected to the Government. The members had, like the rest of the
community, been put into high good humour by the return of peace and by
the revival of trade. They were indeed still under the influence of
the feelings of the preceding day; and they had still in their ears
the thanksgiving sermons and thanksgiving anthems; all the bonfires had
hardly burned out; and the rows of lamps and candles had hardly been
taken down. Many, therefore, who did not assent to all that the King had
said, joined in a loud hum of approbation when he concluded. [3] As
soon as the Commons had retired to their own chamber, they resolved to
present an address assuring His Majesty that they would stand by him
in peace as firmly as they had stood by him in war. Seymour, who had,
during the autumn, been going from shire to shire, for the purpose of
inflaming the country gentlemen against the ministry, ventured to make
some uncourtly remarks; but he gave so much offence that he was hissed
down, and did not venture to demand a division. [4]
The friends of the Government were greatly elated by the proceedings
of this day. During the following week hopes were entertained that the
Parliament might be induced to vote a peace establishment of thirty
thousand men. But these hopes were delusive. The hum with which
William's speech had been received, and the hiss which had drowned the
voice of Seymour, had been misunderstood. The Commons were indeed warmly
attached to the King's person and government, and quick to resent any
disrespectful mention of his name. But the members who were disposed
to let him have even half as many troops as he thought necessary were
a minority. On the tenth of December his speech was considered in a
Committee of the whole House; and Harley came forward as the chief of
the opposition. He did not, like some hot headed men, among both
the Whigs and the Tories, contend that there ought to be no regular
soldiers. But he maintained that it was unnecessary to keep up, after
the peace of Ryswick, a larger force than had been kept up after the
peace of Nimeguen. He moved, therefore, that the military establishment
should be reduced to what it had been in the year 1680. The Ministers
found that, on this occasion, neither their honest nor their dishonest
supporters could be trusted. For, in the minds of the most respectable
men, the prejudice against standing armies was of too long growth and
too deep root to be at once removed; and those means by which the Court
might, at another time, have secured the help of venal politicians
were, at that moment, of less avail than usual. The Triennial Act was
beginning to produce its effects. A general election was at hand. Every
member who had constituents was desirous to please them; and it was
certain that no member would please his constituents by voting for a
standing army; and the resolution moved by Harvey was strongly supported
by Howe, was carried, was reported to the House on the following day,
and, after a debate in which several orators made a great display of
their knowledge of ancient and modern history, was confirmed by one
hundred and eighty-five votes to one hundred and forty-eight. [5]
In this debate the fear and hatred with which many of the best friends
of the Government regarded Sunderland were unequivocally manifested. "It
is easy," such was the language of several members, "it is easy to
guess by whom that unhappy sentence was inserted in the speech from the
Throne. No person well acquainted with the disastrous and disgraceful
history of the last two reigns can doubt who the minister is, who is now
whispering evil counsel in the ear of a third master. " The Chamberlain,
thus fiercely attacked, was very feebly defended. There was indeed in
the House of Commons a small knot of his creatures; and they were men
not destitute of a certain kind of ability; but their moral character
was as bad as his. One of them was the late Secretary of the Treasury,
Guy, who had been turned out of his place for corruption. Another was
the late Speaker, Trevor, who had, from the chair, put the question
whether he was or was not a rogue, and had been forced to pronounce
that the Ayes had it. A third was Charles Duncombe, long the greatest
goldsmith of Lombard Street, and now one of the greatest landowners of
the North Riding of Yorkshire. Possessed of a private fortune equal to
that of any duke, he had not thought it beneath him to accept the place
of Cashier of the Excise, and had perfectly understood how to make
that place lucrative; but he had recently been ejected from office by
Montague, who thought, with good reason, that he was not a man to be
trusted. Such advocates as Trevor, Guy and Duncombe could do little for
Sunderland in debate. The statesmen of the junto would do nothing for
him. They had undoubtedly owed much to him. His influence, cooperating
with their own great abilities and with the force of circumstances, had
induced the King to commit the direction of the internal administration
of the realm to a Whig Cabinet. But the distrust which the old traitor
and apostate inspired was not to be overcome. The ministers could not be
sure that he was not, while smiling on them, whispering in confidential
tones to them, pouring out, as it might seem, all his heart to them,
really calumniating them in the closet or suggesting to the opposition
some ingenious mode of attacking them. They had very recently been
thwarted by him. They were bent on making Wharton a Secretary of State,
and had therefore looked forward with impatience to the retirement of
Trumball, who was indeed hardly equal to the duties of his great place.
To their surprise and mortification they learned, on the eve of the
meeting of Parliament, that Trumball had suddenly resigned, and Vernon,
the Under Secretary, had been summoned to Kensington, and had returned
thence with the seals. Vernon was a zealous Whig, and not personally
unacceptable to the chiefs of his party. But the Lord Chancellor, the
First Lord of the Treasury, and the First Lord of the Admiralty, might
not unnaturally think it strange that a post of the highest importance
should have been filled up in opposition to their known wishes, and with
a haste and a secresy which plainly showed that the King did not wish to
be annoyed by their remonstrances. The Lord Chamberlain pretended that
he had done all in his power to serve Wharton. But the Whig chiefs were
not men to be duped by the professions of so notorious a liar. Montague
bitterly described him as a fireship, dangerous at best, but on the
whole most dangerous as a consort, and least dangerous when showing
hostile colours. Smith, who was the most efficient of Montague's
lieutenants, both in the Treasury and in the Parliament, cordially
sympathised with his leader. Sunderland was therefore left undefended.
His enemies became bolder and more vehement every day. Sir Thomas Dyke,
member for Grinstead, and Lord Norris, son of the Earl of Abingdon,
talked of moving an address requesting the King to banish for ever from
the Court and the Council that evil adviser who had misled His Majesty's
royal uncles, had betrayed the liberties of the people, and had abjured
the Protestant religion.
Sunderland had been uneasy from the first moment at which his name
had been mentioned in the House of Commons. He was now in an agony
of terror. The whole enigma of his life, an enigma of which many
unsatisfactory and some absurd explanations have been propounded, is at
once solved if we consider him as a man insatiably greedy of wealth and
power, and yet nervously apprehensive of danger. He rushed with ravenous
eagerness at every bait which was offered to his cupidity. But any
ominous shadow, any threatening murmur, sufficed to stop him in his full
career, and to make him change his course or bury himself in a hiding
place. He ought to have thought himself fortunate indeed, when, after
all the crimes which he had committed, he found himself again enjoying
his picture gallery and his woods at Althorpe, sitting in the House of
Lords, admitted to the royal closet, pensioned from the Privy Purse,
consulted about the most important affairs of state. But his ambition
and avarice would not suffer him to rest till he held a high and
lucrative office, till he was a regent of the kingdom. The consequence
was, as might have been expected, a violent clamour; and that clamour he
had not the spirit to face.
His friends assured him that the threatened address would not be
carried. Perhaps a hundred and sixty members might vote for it; but
hardly more. "A hundred and sixty! " he cried: "No minister can stand
against a hundred and sixty. I am sure that I will not try. " It must be
remembered that a hundred and sixty votes in a House of five hundred and
thirteen members would correspond to more than two hundred votes in the
present House of Commons; a very formidable minority on the unfavourable
side of a question deeply affecting the personal character of a public
man. William, unwilling to part with a servant whom he knew to be
unprincipled, but whom he did not consider as more unprincipled than
many other English politicians, and in whom he had found much of a very
useful sort of knowledge, and of a very useful sort of ability, tried to
induce the ministry to come to the rescue. It was particularly
important to soothe Wharton, who had been exasperated by his recent
disappointment, and had probably exasperated the other members of the
junto. He was sent for to the palace. The King himself intreated him
to be reconciled to the Lord Chamberlain, and to prevail on the Whig
leaders in the Lower House to oppose any motion which Dyke or Norris
might make. Wharton answered in a manner which made it clear that
from him no help was to be expected. Sunderland's terrors now became
insupportable. He had requested some of his friends to come to his house
that he might consult them; they came at the appointed hour, but found
that he had gone to Kensington, and had left word that he should soon
be back. When he joined them, they observed that he had not the gold key
which is the badge of the Lord Chamberlain, and asked where it was. "At
Kensington," answered Sunderland. They found that he had tendered his
resignation, and that it had been, after a long struggle, accepted.
They blamed his haste, and told him that, since he had summoned them to
advise him on that day, he might at least have waited till the morrow.
"To morrow," he exclaimed, "would have ruined me. To night has saved
me. "
Meanwhile, both the disciples of Somers and the disciples of Trenchard
were grumbling at Harley's resolution. The disciples of Somers
maintained that, if it was right to have an army at all, it must be
right to have an efficient army. The disciples of Trenchard complained
that a great principle had been shamefully given up. On the vital
issue, Standing Army or no Standing Army, the Commons had pronounced an
erroneous, a fatal decision. Whether that army should consist of five
regiments or of fifteen was hardly worth debating. The great dyke which
kept out arbitrary power had been broken. It was idle to say that the
breach was narrow; for it would soon be widened by the flood which would
rush in. The war of pamphlets raged more fiercely than ever. At the same
time alarming symptoms began to appear among the men of the sword. They
saw themselves every day described in print as the scum of society,
as mortal enemies of the liberties of their country. Was it
reasonable,--such was the language of some scribblers,--that an honest
gentleman should pay a heavy land tax, in order to support in idleness
and luxury a set of fellows who requited him by seducing his dairy maids
and shooting his partridges? Nor was it only in Grub Street tracts that
such reflections were to be found. It was known all over the town that
uncivil things had been said of the military profession in the House of
Commons, and that Jack Howe, in particular, had, on this subject,
given the rein to his wit and to his ill nature. Some rough and daring
veterans, marked with the scars of Steinkirk and singed with the smoke
of Namur, threatened vengeance for these insults. The writers and
speakers who had taken the greatest liberties went in constant fear
of being accosted by fierce-looking captains, and required to make an
immediate choice between fighting and being caned. One gentleman, who
had made himself conspicuous by the severity of his language, went about
with pistols in his pockets. Howe, whose courage was not proportionate
to his malignity and petulance, was so much frightened, that he retired
into the country. The King, well aware that a single blow given, at
that critical conjuncture, by a soldier to a member of Parliament might
produce disastrous consequences, ordered the officers of the army to
their quarters, and, by the vigorous exertion of his authority and
influence, succeeded in preventing all outrage. [6]
All this time the feeling in favour of a regular force seemed to be
growing in the House of Commons. The resignation of Sunderland had
put many honest gentlemen in good humour. The Whig leaders exerted
themselves to rally their followers, held meetings at the "Rose," and
represented strongly the dangers to which the country would be exposed,
if defended only by a militia. The opposition asserted that neither
bribes nor promises were spared. The ministers at length flattered
themselves that Harley's resolution might be rescinded. On the eighth of
January they again tried their strength, and were again defeated, though
by a smaller majority than before. A hundred and sixty-four members
divided with them. A hundred and eighty-eight were for adhering to the
vote of the eleventh of December. It was remarked that on this occasion
the naval men, with Rooke at their head, voted against the Government.
[7]
It was necessary to yield. All that remained was to put on the words
of the resolution of the eleventh of December the most favourable sense
that they could be made to bear. They did indeed admit of very different
interpretations. The force which was actually in England in 1680 hardly
amounted to five thousand men. But the garrison of Tangier and the
regiments in the pay of the Batavian federation, which, as they were
available for the defence of England against a foreign or domestic
enemy, might be said to be in some sort part of the English army,
amounted to at least five thousand more. The construction which the
ministers put on the resolution of the eleventh of December was, that
the army was to consist of ten thousand men; and in this construction
the House acquiesced. It was not held to be necessary that the
Parliament should, as in our time, fix the amount of the land force. The
Commons thought that they sufficiently limited the number of soldiers by
limiting the sum which was to be expended in maintaining soldiers. What
that sum should be was a question which raised much debate. Harley was
unwilling to give more than three hundred thousand pounds. Montague
struggled for four hundred thousand. The general sense of the House was
that Harley offered too little, and that Montague demanded too much. At
last, on the fourteenth of January, a vote was taken for three hundred
and fifty thousand pounds. Four days later the House resolved to
grant half-pay to the disbanded officers till they should be otherwise
provided for. The half-pay was meant to be a retainer as well as a
reward. The effect of this important vote therefore was that, whenever
a new war should break out, the nation would be able to command the
services of many gentlemen of great military experience. The ministry
afterwards succeeded in obtaining, much against the will of a portion of
the opposition, a separate vote for three thousand marines.
A Mutiny Act, which had been passed in 1697, expired in the spring of
1698. As yet no such Act had been passed except in time of war; and the
temper of the Parliament and of the nation was such that the ministers
did not venture to ask, in time of peace, for a renewal of powers
unknown to the constitution. For the present, therefore, the soldier was
again, as in the times which preceded the Revolution, subject to exactly
the same law which governed the citizen.
It was only in matters relating to the army that the government found
the Commons unmanageable. Liberal provision was made for the navy. The
number of seamen was fixed at ten thousand, a great force, according to
the notions of that age, for a time of peace. The funds assigned some
years before for the support of the civil list had fallen short of the
estimate. It was resolved that a new arrangement should be made, and
that a certain income should be settled on the King. The amount was
fixed, by an unanimous vote, at seven hundred thousand pounds; and the
Commons declared that, by making this ample provision for his comfort
and dignity, they meant to express their sense of the great things which
he had done for the country. It is probable, however, that so large a
sum would not have been given without debates and divisions, had it not
been understood that he meant to take on himself the charge of the Duke
of Gloucester's establishment, and that he would in all probability have
to pay fifty thousand pounds a year to Mary of Modena. The Tories
were unwilling to disoblige the Princess of Denmark; and the Jacobites
abstained from offering any opposition to a grant in the benefit of
which they hoped that the banished family would participate.
It was not merely by pecuniary liberality that the Parliament testified
attachment to the Sovereign. A bill was rapidly passed which withheld
the benefit of the Habeas Corpus Act, during twelve months more, from
Bernardi and some other conspirators who had been concerned in the
Assassination Plot, but whose guilt, though demonstrated to the
conviction of every reasonable man, could not be proved by two
witnesses. At the same time new securities were provided against a new
danger which threatened the government. The peace had put an end to the
apprehension that the throne of William might be subverted by foreign
arms, but had, at the same time, facilitated domestic treason. It was no
longer necessary for an agent from Saint Germains to cross the sea in
a fishing boat, under the constant dread of being intercepted by a
cruiser. It was no longer necessary for him to land on a desolate beach,
to lodge in a thatched hovel, to dress himself like a carter, or to
travel up to town on foot. He came openly by the Calais packet, walked
into the best inn at Dover, and ordered posthorses for London. Meanwhile
young Englishmen of quality and fortune were hastening in crowds to
Paris. They would naturally wish to see him who had once been their
king; and this curiosity, though in itself innocent, might have evil
consequences. Artful tempters would doubtless be on the watch for every
such traveller; and many such travellers might be well pleased to be
courteously accosted, in a foreign land, by Englishmen of honourable
name, distinguished appearance, and insinuating address. It was not to
be expected that a lad fresh from the university would be able to refute
all the sophisms and calumnies which might be breathed in his ear
by dexterous and experienced seducers. Nor would it be strange if he
should, in no long time, accept an invitation to a private audience
at Saint Germains, should be charmed by the graces of Mary of Modena,
should find something engaging in the childish innocence of the Prince
of Wales, should kiss the hand of James, and should return home an
ardent Jacobite. An Act was therefore passed forbidding English subjects
to hold any intercourse orally, or by writing, or by message, with the
exiled family. A day was fixed after which no English subject, who had,
during the late war, gone into France without the royal permission or
borne arms against his country was to be permitted to reside in this
kingdom, except under a special license from the King. Whoever infringed
these rules incurred the penalties of high treason.
The dismay was at first great among the malecontents. For English and
Irish Jacobites, who had served under the standards of Lewis or hung
about the Court of Saint Germains, had, since the peace, come over in
multitudes to England. It was computed that thousands were within the
scope of the new Act. But the severity of that Act was mitigated by a
beneficent administration. Some fierce and stubborn non-jurors who would
not debase themselves by asking for any indulgence, and some conspicuous
enemies of the government who had asked for indulgence in vain, were
under the necessity of taking refuge on the Continent. But the great
majority of those offenders who promised to live peaceably under
William's rule obtained his permission to remain in their native land.
In the case of one great offender there were some circumstances which
attracted general interest, and which might furnish a good subject to
a novelist or a dramatist. Near fourteen years before this time,
Sunderland, then Secretary of State to Charles the Second, had married
his daughter Lady Elizabeth Spencer to Donough Macarthy, Earl of
Clancarty, the lord of an immense domain in Munster. Both the bridegroom
and the bride were mere children, the bridegroom only fifteen, the bride
only eleven. After the ceremony they were separated; and many years
full of strange vicissitudes elapsed before they again met. The boy soon
visited his estates in Ireland. He had been bred a member of the Church
of England; but his opinions and his practice were loose. He found
himself among kinsmen who were zealous Roman Catholics. A Roman
Catholic king was on the throne. To turn Roman Catholic was the best
recommendation to favour both at Whitehall and at Dublin Castle.
Clancarty speedily changed his religion, and from a dissolute Protestant
became a dissolute Papist. After the Revolution he followed the fortunes
of James; sate in the Celtic Parliament which met at the King's Inns;
commanded a regiment in the Celtic army; was forced to surrender himself
to Marlborough at Cork; was sent to England, and was imprisoned in the
Tower. The Clancarty estates, which were supposed to yield a rent of not
much less than ten thousand a year, were confiscated. They were charged
with an annuity to the Earl's brother, and with another annuity to his
wife; but the greater part was bestowed by the King on Lord Woodstock,
the eldest son of Portland; During some time, the prisoner's life was
not safe. For the popular voice accused him of outrages for which the
utmost license of civil war would not furnish a plea. It is said that
he was threatened with an appeal of murder by the widow of a Protestant
clergyman who had been put to death during the troubles. After passing
three years in confinement, Clancarty made his escape to the Continent,
was graciously received at St. Germains, and was entrusted with the
command of a corps of Irish refugees. When the treaty of Ryswick had
put an end to the hope that the banished dynasty would be restored by
foreign arms, he flattered himself that he might be able to make his
peace with the English Government. But he was grievously disappointed.
The interest of his wife's family was undoubtedly more than sufficient
to obtain a pardon for him. But on that interest he could not reckon.
The selfish, base, covetous, father-in-law was not at all desirous
to have a highborn beggar and the posterity of a highborn beggar to
maintain. The ruling passion of the brother-in-law was a stern and
acrimonious party spirit. He could not bear to think that he was so
nearly connected with an enemy of the Revolution and of the Bill of
Rights, and would with pleasure have seen the odious tie severed even
by the hand of the executioner. There was one, however, from whom the
ruined, expatriated, proscribed young nobleman might hope to find a kind
reception. He stole across the Channel in disguise, presented himself at
Sunderland's door, and requested to see Lady Clancarty. He was charged,
he said, with a message to her from her mother, who was then lying on a
sick bed at Windsor. By this fiction he obtained admission, made himself
known to his wife, whose thoughts had probably been constantly fixed on
him during many years, and prevailed on her to give him the most tender
proofs of an affection sanctioned by the laws both of God and of man.
The secret was soon discovered and betrayed by a waiting woman. Spencer
learned that very night that his sister had admitted her husband to her
apartment. The fanatical young Whig, burning with animosity which he
mistook for virtue, and eager to emulate the Corinthian who assassinated
his brother, and the Roman who passed sentence of death on his son, flew
to Vernon's office, gave information that the Irish rebel, who had once
already escaped from custody, was in hiding hard by, and procured a
warrant and a guard of soldiers. Clancarty was found in the arms of his
wife, and dragged to the Tower. She followed him and implored permission
to partake his cell. These events produced a great stir throughout the
society of London. Sunderland professed everywhere that he heartily
approved of his son's conduct; but the public had made up its mind about
Sunderland's veracity, and paid very little attention to his professions
on this or on any other subject. In general, honourable men of both
parties, whatever might be their opinion of Clancarty, felt great
compassion for his mother who was dying of a broken heart, and his poor
young wife who was begging piteously to be admitted within the Traitor's
Gate. Devonshire and Bedford joined with Ormond to ask for mercy. The
aid of a still more powerful intercessor was called in. Lady Russell
was esteemed by the King as a valuable friend; she was venerated by
the nation generally as a saint, the widow of a martyr; and, when she
deigned to solicit favours, it was scarcely possible that she should
solicit in vain. She naturally felt a strong sympathy for the unhappy
couple, who were parted by the walls of that gloomy old fortress in
which she had herself exchanged the last sad endearments with one whose
image was never absent from her. She took Lady Clancarty with her to the
palace, obtained access to William, and put a petition into his hand.
Clancarty was pardoned on condition that he should leave the kingdom and
never return to it. A pension was granted to him, small when compared
with the magnificent inheritance which he had forfeited, but quite
sufficient to enable him to live like a gentleman on the Continent. He
retired, accompanied by his Elizabeth, to Altona.
All this time the ways and means for the year were under consideration.
The Parliament was able to grant some relief to the country. The land
tax was reduced from four shillings in the pound to three. But nine
expensive campaigns had left a heavy arrear behind them; and it was
plain that the public burdens must, even in the time of peace, be such
as, before the Revolution, would have been thought more than sufficient
to support a vigorous war. A country gentleman was in no very good
humour, when he compared the sums which were now exacted from him with
those which he had been in the habit of paying under the last two kings;
his discontent became stronger when he compared his own situation
with that of courtiers, and above all of Dutch courtiers, who had been
enriched by grants of Crown property; and both interest and envy made
him willing to listen to politicians who assured him that, if those
grants were resumed, he might be relieved from another shilling.
The arguments against such a resumption were not likely to be heard with
favour by a popular assembly composed of taxpayers, but to statesmen and
legislators will seem unanswerable.
There can be no doubt that the Sovereign was, by the old polity of the
realm, competent to give or let the domains of the Crown in such manner
as seemed good to him. No statute defined the length of the term which
he might grant, or the amount of the rent which he must reserve. He
might part with the fee simple of a forest extending over a hundred
square miles in consideration of a tribute of a brace of hawks to be
delivered annually to his falconer, or of a napkin of fine linen to be
laid on the royal table at the coronation banquet. In fact, there had
been hardly a reign since the Conquest, in which great estates had not
been bestowed by our princes on favoured subjects. Anciently, indeed,
what had been lavishly given was not seldom violently taken away.
Several laws for the resumption of Crown lands were passed by the
Parliaments of the fourteenth and fifteenth centuries. Of those laws the
last was that which, in the year 1485, immediately after the battle of
Bosworth, annulled the donations of the kings of the House of York. More
than two hundred years had since elapsed without any Resumption Act.
An estate derived from the royal liberality had long been universally
thought as secure as an estate which had descended from father to son
since the compilation of Domesday Book. No title was considered as more
perfect than that of the Russells to Woburn, given by Henry the Eighth
to the first Earl of Bedford, or than that of the Cecils to Hatfield,
purchased from the Crown for less than a third of the real value by
the first Earl of Salisbury. The Long Parliament did not, even in that
celebrated instrument of nineteen articles, which was framed expressly
for the purpose of making the King a mere Doge, propose to restrain him
from dealing according to his pleasure with his parks and his castles,
his fisheries and his mines. After the Restoration, under the government
of an easy prince, who had indeed little disposition to give, but who
could not bear to refuse, many noble private fortunes were carved out of
the property of the Crown. Some of the persons who were thus enriched,
Albemarle, for example, Sandwich and Clarendon, might be thought to have
fairly earned their master's favour by their services. Others had
merely amused his leisure or pandered to his vices. His mistresses were
munificently rewarded. Estates sufficient to support the highest rank in
the peerage were distributed among his illegitimate children. That these
grants, however prodigal, were strictly legal, was tacitly admitted by
the Estates of the Realm, when, in 1689, they recounted and condemned
the unconstitutional acts of the kings of the House of Stuart. Neither
in the Declaration of Right nor in the Bill of Rights is there a word on
the subject. William, therefore, thought himself at liberty to give
away his hereditary domains as freely as his predecessors had given away
theirs. There was much murmuring at the profusion with which he rewarded
his Dutch favourites; and we have seen that, on one occasion in the year
1696, the House of Commons interfered for the purpose of restraining
his liberality. An address was presented requesting him not to grant to
Portland an extensive territory in North Wales. But it is to be observed
that, though in this address a strong opinion was expressed that the
grant would be mischievous, the Commons did not deny, and must therefore
be considered as having admitted, that it would be perfectly legal. The
King, however, yielded; and Portland was forced to content himself with
ten or twelve manors scattered over various counties from Cumberland to
Sussex.
It seems, therefore, clear that our princes were, by the law of the
land, competent to do what they would with their hereditary estates.
It is perfectly true that the law was defective, and that the profusion
with which mansions, abbeys, chaces, warrens, beds of ore, whole
streets, whole market towns, had been bestowed on courtiers was greatly
to be lamented. Nothing could have been more proper than to pass a
prospective statute tying up in strict entail the little which still
remained of the Crown property. But to annul by a retrospective statute
patents, which in Westminster Hall were held to be legally valid, would
have been simply robbery. Such robbery must necessarily have made all
property insecure; and a statesman must be short-sighted indeed who
imagines that what makes property insecure can really make society
prosperous.
But it is vain to expect that men who are inflamed by anger, who are
suffering distress, and who fancy that it is in their power to obtain
immediate relief from their distresses at the expense of those who have
excited their anger, will reason as calmly as the historian who, biassed
neither by interest nor passion, reviews the events of a past age.
The public burdens were heavy. To whatever extent the grants of royal
domains were revoked, those burdens would be lightened. Some of the
recent grants had undoubtedly been profuse. Some of the living grantees
were unpopular. A cry was raised which soon became formidably loud. All
the Tories, all the malecontent Whigs, and multitudes who, without
being either Tories or malecontent Whigs, disliked taxes and disliked
Dutchmen, called for a resumption of all the Crown property which King
William had, as it was phrased, been deceived into giving away.
On the seventh of February 1698, this subject, destined to irritate
the public mind at intervals during many years, was brought under the
consideration of the House of Commons. The opposition asked leave to
bring in a bill vacating all grants of Crown property which had been
made since the Revolution. The ministers were in a great strait; the
public feeling was strong; a general election was approaching; it was
dangerous and it would probably be vain to encounter the prevailing
sentiment directly. But the shock which could not be resisted might be
eluded. The ministry accordingly professed to find no fault with the
proposed bill, except that it did not go far enough, and moved for leave
to bring in two more bills, one for annulling the grants of James the
Second, the other for annulling the grants of Charles the Second. The
Tories were caught in their own snare. For most of the grants of Charles
and James had been made to Tories; and a resumption of those grants
would have reduced some of the chiefs of the Tory party to poverty. Yet
it was impossible to draw a distinction between the grants of William
and those of his two predecessors. Nobody could pretend that the law
had been altered since his accession. If, therefore, the grants of the
Stuarts were legal, so were his; if his grants were illegal, so were
the grants of his uncles. And, if both his grants and the grants of his
uncles were illegal, it was absurd to say that the mere lapse of time
made a difference. For not only was it part of the alphabet of the law
that there was no prescription against the Crown, but the thirty-eight
years which had elapsed since the Restoration would not have sufficed
to bar a writ of right brought by a private demandant against a wrongful
tenant. Nor could it be pretended that William had bestowed his favours
less judiciously than Charles and James. Those who were least friendly
to the Dutch would hardly venture to say that Portland, Zulestein and
Ginkell was less deserving of the royal bounty than the Duchess of
Cleveland and the Duchess of Portsmouth, than the progeny of Nell Gwynn,
than the apostate Arlington or the butcher Jeffreys. The opposition,
therefore, sullenly assented to what the ministry proposed. From that
moment the scheme was doomed. Everybody affected to be for it; and
everybody was really against it. The three bills were brought in
together, read a second time together, ordered to be committed together,
and were then, first mutilated, and at length quietly dropped.
In the history of the financial legislation of this session, there were
some episodes which deserve to be related. Those members, a numerous
body, who envied and dreaded Montague readily became the unconscious
tools of the cunning malice of Sunderland, whom Montague had refused
to defend in Parliament, and who, though detested by the opposition,
contrived to exercise some influence over that party through the
instrumentality of Charles Duncombe. Duncombe indeed had his own reasons
for hating Montague, who had turned him out of the place of Cashier of
the Excise. A serious charge was brought against the Board of Treasury,
and especially against its chief. He was the inventor of Exchequer
Bills; and they were popularly called Montague's notes. He had induced
the Parliament to enact that those bills, even when at a discount in the
market, should be received at par by the collectors of the revenue.
This enactment, if honestly carried into effect, would have been
unobjectionable. But it was strongly rumoured that there had been
foul play, peculation, even forgery. Duncombe threw the most serious
imputations on the Board of Treasury, and pretended that he had been put
out of his office only because he was too shrewd to be deceived, and too
honest to join in deceiving the public. Tories and malecontent Whigs,
elated by the hope that Montague might be convicted of malversation,
eagerly called for inquiry. An inquiry was instituted; but the
result not only disappointed but utterly confounded the accusers. The
persecuted minister obtained both a complete acquittal, and a signal
revenge. Circumstances were discovered which seemed to indicate that
Duncombe himself was not blameless. The clue was followed; he was
severely cross-examined; he lost his head; made one unguarded admission
after another, and was at length compelled to confess, on the floor of
the House, that he had been guilty of an infamous fraud, which, but for
his own confession, it would have been scarcely possible to bring home
to him. He had been ordered by the Commissioners of the Excise to pay
ten thousand pounds into the Exchequer for the public service. He had in
his hands, as cashier, more than double that sum in good milled silver.
With some of this money he bought Exchequer Bills which were then at
a considerable discount; he paid those bills in; and he pocketed the
discount, which amounted to about four hundred pounds. Nor was this
all. In order to make it appear that the depreciated paper, which he had
fraudulently substituted for silver, had been received by him in payment
of taxes, he had employed a knavish Jew to forge endorsements of names,
some real and some imaginary. This scandalous story, wrung out of his
own lips, was heard by the opposition with consternation and shame,
by the ministers and their friends with vindictive exultation. It was
resolved, without any division, that he should be sent to the Tower,
that he should be kept close prisoner there, that he should be expelled
from the House. Whether any further punishment could be inflicted on him
was a perplexing question. The English law touching forgery became, at a
later period, barbarously severe; but, in 1698, it was absurdly lax. The
prisoner's offence was certainly not a felony; and lawyers apprehended
that there would be much difficulty in convicting him even of a
misdemeanour. But a recent precedent was fresh in the minds of all men.
The weapon which had reached Fenwick might reach Duncombe. A bill of
pains and penalties was brought in, and carried through the earlier
stages with less opposition than might have been expected. Some Noes
might perhaps be uttered; but no members ventured to say that the Noes
had it. The Tories were mad with shame and mortification, at finding
that their rash attempt to ruin an enemy had produced no effect except
the ruin of a friend. In their rage, they eagerly caught at a new hope
of revenge, a hope destined to end, as their former hope had ended, in
discomfiture and disgrace. They learned, from the agents of Sunderland,
as many people suspected, but certainly from informants who were well
acquainted with the offices about Whitehall, that some securities
forfeited to the Crown in Ireland had been bestowed by the King
ostensibly on one Thomas Railton, but really on the Chancellor of the
Exchequer. The value of these securities was about ten thousand pounds.
On the sixteenth of February this transaction was brought without
any notice under the consideration of the House of Commons by Colonel
Granville, a Tory member, nearly related to the Earl of Bath. Montague
was taken completely by surprise, but manfully avowed the whole truth,
and defended what he had done. The orators of the opposition declaimed
against him with great animation and asperity. "This gentleman,"
they said, "has at once violated three distinct duties. He is a privy
councillor, and, as such, is bound to advise the Crown with a view, not
to his own selfish interests, but to the general good. He is the first
minister of finance, and is, as such, bound to be a thrifty manager of
the royal treasure. He is a member of this House, and is, as such, bound
to see that the burdens borne by his constituents are not made heavier
by rapacity and prodigality. To all these trusts he has been unfaithful.
The advice of the privy councillor to his master is, 'Give me money. '
The first Lord of the Treasury signs a warrant for giving himself money
out of the Treasury. The member for Westminster puts into his pocket
money which his constituents must be taxed to replace. " The surprise
was complete; the onset was formidable; but the Whig majority, after
a moment of dismay and wavering, rallied firmly round their leader.
Several speakers declared that they highly approved of the prudent
liberality with which His Majesty had requited the services of a most
able, diligent and trusty counsellor. It was miserable economy indeed to
grudge a reward of a few thousands to one who had made the State richer
by millions. Would that all the largesses of former kings had been as
well bestowed! How those largesses had been bestowed none knew better
than some of the austere patriots who harangued so loudly against the
avidity of Montague. If there is, it was said, a House in England
which has been gorged with undeserved riches by the prodigality of weak
sovereigns, it is the House of Bath. Does it lie in the mouth of a son
of that house to blame the judicious munificence of a wise and good
King? Before the Granvilles complain that distinguished merit has been
rewarded with ten thousand pounds, let them refund some part of the
hundreds of thousands which they have pocketed without any merit at all.
The rule was, and still is, that a member against whom a charge is made
must be heard in his own defence, and must then leave the House. The
Opposition insisted that Montague should retire. His friends maintained
that this case did not fall within the rule. Distinctions were drawn;
precedents were cited; and at length the question was put, that Mr.
Montague do withdraw. The Ayes were only ninety-seven; the Noes two
hundred and nine. This decisive result astonished both parties. The
Tories lost heart and hope. The joy of the Whigs was boundless. It
was instantly moved that the Honourable Charles Montague, Esquire,
Chancellor of the Exchequer, for his good services to this Government
does deserve His Majesty's favour. The Opposition, completely cowed, did
not venture to demand another division. Montague scornfully thanked
them for the inestimable service which they had done him. But for
their malice he never should have had the honour and happiness of
being solemnly pronounced by the Commons of England a benefactor of his
country. As to the grant which had been the subject of debate, he was
perfectly ready to give it up, if his accusers would engage to follow
his example.
Even after this defeat the Tories returned to the charge. They pretended
that the frauds which had been committed with respect to the Exchequer
Bills had been facilitated by the mismanagement of the Board of
Treasury, and moved a resolution which implied a censure on that Board,
and especially on its chief. This resolution was rejected by a hundred
and seventy votes to eighty-eight. It was remarked that Spencer, as if
anxious to show that he had taken no part in the machinations of which
his father was justly or unjustly suspected, spoke in this debate with
great warmth against Duncombe and for Montague.
A few days later, the bill of pains and penalties against Duncombe
passed the Commons. It provided that two thirds of his enormous
property, real and personal, should be confiscated and applied to the
public service. Till the third reading there was no serious opposition.
Then the Tories mustered their strength. They were defeated by a hundred
and thirty-eight votes to a hundred and three; and the bill was carried
up to the Lords by the Marquess of Hartington, a young nobleman whom the
great body of Whigs respected as one of their hereditary chiefs, as the
heir of Devonshire, and as the son in law of Russell.
That Duncombe had been guilty of shameful dishonesty was acknowledged
by all men of sense and honour in the party to which he belonged. He had
therefore little right to expect indulgence from the party which he had
unfairly and malignantly assailed. Yet it is not creditable to the Whigs
that they should have been so much disgusted by his frauds, or so much
irritated by his attacks, as to have been bent on punishing him in a
manner inconsistent with all the principles which governments ought to
hold most sacred.
Those who concurred in the proceeding against Duncombe tried to
vindicate their conduct by citing as an example the proceeding
against Fenwick. So dangerous is it to violate, on any pretence, those
principles which the experience of ages has proved to be the safeguards
of all that is most precious to a community. Twelve months had hardly
elapsed since the legislature had, in very peculiar circumstances, and
for very plausible reasons, taken upon itself to try and to punish a
great criminal whom it was impossible to reach in the ordinary course
of justice; and already the breach then made in the fences which protect
the dearest rights of Englishmen was widening fast. What had last year
been defended only as a rare exception seemed now to be regarded as the
ordinary rule. Nay, the bill of pains and penalties which now had
an easy passage through the House of Commons was infinitely more
objectionable than the bill which had been so obstinately resisted at
every stage in the preceding session.
The writ of attainder against Fenwick was not, as the vulgar imagined
and still imagine, objectionable because it was retrospective. It
is always to be remembered that retrospective legislation is bad in
principle only when it affects the substantive law. Statutes creating
new crimes or increasing the punishment of old crimes ought in no case
to be retrospective. But statutes which merely alter the procedure, if
they are in themselves good statutes, ought to be retrospective. To take
examples from the legislation of our own time, the Act passed in 1845,
for punishing the malicious destruction of works of art with whipping,
was most properly made prospective only. Whatever indignation the
authors of that Act might feel against the ruffian who had broken the
Barberini Vase, they knew that they could not, without the most serious
detriment to the commonwealth, pass a law for scourging him. On the
other hand the Act which allowed the affirmation of a Quaker to be
received in criminal cases allowed, and most justly and reasonably, such
affirmation to be received in the case of a past as well as of a future
misdemeanour or felony. If we try the Act which attainted Fenwick by
these rules we shall find that almost all the numerous writers who
have condemned it have condemned it on wrong grounds. It made no
retrospective change in the substantive law. The crime was not new.
It was high treason as defined by the Statute of Edward the Third. The
punishment was not new. It was the punishment which had been inflicted
on traitors of ten generations. All that was new was the procedure;
and, if the new procedure had been intrinsically better than the old
procedure, the new procedure might with perfect propriety have been
employed. But the procedure employed in Fenwick's case was the worst
possible, and would have been the worst possible if it had been
established from time immemorial. However clearly political crime may
have been defined by ancient laws, a man accused of it ought not to be
tried by a crowd of five hundred and thirteen eager politicians, of whom
he can challenge none even with cause, who have no judge to guide them,
who are allowed to come in and go out as they choose, who hear as much
or as little as they choose of the accusation and of the defence, who
are exposed, during the investigation, to every kind of corrupting
influence, who are inflamed by all the passions which animated debates
naturally excite, who cheer one orator and cough down another, who are
roused from sleep to cry Aye or No, or who are hurried half drunk
from their suppers to divide. For this reason, and for no other, the
attainder of Fenwick is to be condemned. It was unjust and of evil
example, not because it was a retrospective Act, but because it was an
act essentially judicial, performed by a body destitute of all judicial
qualities.
The bill for punishing Duncombe was open to all the objections which can
be urged against the bill for punishing Fenwick, and to other objections
of even greater weight. In both cases the judicial functions were
usurped by a body unfit to exercise such functions. But the bill
against Duncombe really was, what the bill against Fenwick was not,
objectionable as a retrospective bill. It altered the substantive
criminal law. It visited an offence with a penalty of which the
offender, at the time when he offended, had no notice.
It may be thought a strange proposition that the bill against Duncombe
was a worse bill than the bill against Fenwick, because the bill against
Fenwick struck at life, and the bill against Duncombe struck only at
property. Yet this apparent paradox is a sober truth. Life is indeed
more precious than property. But the power of arbitrarily taking away
the lives of men is infinitely less likely to be abused than the power
of arbitrarily taking away their property. Even the lawless classes of
society generally shrink from blood. They commit thousands of offences
against property to one murder; and most of the few murders which they
do commit are committed for the purpose of facilitating or concealing
some offence against property. The unwillingness of juries to find a
fellow creature guilty of a capital felony even on the clearest evidence
is notorious; and it may well be suspected that they frequently violate
their oaths in favour of life. In civil suits, on the other hand, they
too often forget that their duty is merely to give the plaintiff a
compensation for evil suffered; and, if the conduct of the defendant has
moved their indignation and his fortune is known to be large, they turn
themselves into a criminal tribunal, and, under the name of damages,
impose a large fine. As housebreakers are more likely to take plate and
jewellery than to cut throats; as juries are far more likely to err on
the side of pecuniary severity in assessing damages than to send to the
gibbet any man who has not richly deserved it; so a legislature,
which should be so unwise as to take on itself the functions properly
belonging to the Courts of Law, would be far more likely to pass Acts of
Confiscation than Acts of Attainder. We naturally feel pity even for a
bad man whose head is about to fall. But, when a bad man is compelled to
disgorge his ill-gotten gains, we naturally feel a vindictive pleasure,
in which there is much danger that we may be tempted to indulge too
largely.
The hearts of many stout Whigs doubtless bled at the thought of what
Fenwick must have suffered, the agonizing struggle, in a mind not of
the firmest temper, between the fear of shame and the fear of death,
the parting from a tender wife, and all the gloomy solemnity of the
last morning.
Argive, the Theban, gave his chief attention to his oliveyard or his
vineyard, his warehouse or his workshop, and took up his shield and
spear only for short terms and at long intervals. The difference
therefore between a Lacedaemonian phalanx and any other phalanx was long
as great as the difference between a regiment of the French household
troops and a regiment of the London trainbands. Lacedaemon consequently
continued to be dominant in Greece till other states began to employ
regular troops. Then her supremacy was at an end. She was great while
she was a standing army among militias. She fell when she had to contend
with other standing armies. The lesson which is really to be learned
from her ascendency and from her decline is this, that the occasional
soldier is no match for the professional soldier. [2]
The same lesson Somers drew from the history of Rome; and every scholar
who really understands that history will admit that he was in the right.
The finest militia that ever existed was probably that of Italy in the
third century before Christ. It might have been thought that seven
or eight hundred thousand fighting men, who assuredly wanted neither
natural courage nor public spirit, would have been able to protect their
own hearths and altars against an invader. An invader came, bringing
with him an army small and exhausted by a march over the snows of the
Alps, but familiar with battles and sieges. At the head of this army
he traversed the peninsula to and fro, gained a succession of victories
against immense numerical odds, slaughtered the hardy youth of Latium
like sheep, by tens of thousands, encamped under the walls of Rome,
continued during sixteen years to maintain himself in a hostile country,
and was never dislodged till he had by a cruel discipline gradually
taught his adversaries how to resist him.
It was idle to repeat the names of great battles won, in the middle
ages, by men who did not make war their chief calling; those battles
proved only that one militia might beat another, and not that a militia
could beat a regular army. As idle was it to declaim about the camp
at Tilbury. We had indeed reason to be proud of the spirit which all
classes of Englishmen, gentlemen and yeomen, peasants and burgesses,
had so signally displayed in the great crisis of 1588. But we had also
reason to be thankful that, with all their spirit, they were not brought
face to face with the Spanish battalions. Somers related an anecdote,
well worthy to be remembered, which had been preserved by tradition
in the noble house of De Vere. One of the most illustrious men of that
house, a captain who had acquired much experience and much fame in the
Netherlands, had, in the crisis of peril, been summoned back to England
by Elizabeth, and rode with her through the endless ranks of shouting
pikemen. She asked him what he thought of the army. "It is," he said, "a
brave army. " There was something in his tone or manner which showed
that he meant more than his words expressed. The Queen insisted on his
speaking out. "Madam," he said, "Your Grace's army is brave indeed. I
have not in the world the name of a coward, and yet I am the greatest
coward here. All these fine fellows are praying that the enemy may land,
and that there may be a battle; and I, who know that enemy well, cannot
think of such a battle without dismay. " De Vere was doubtless in the
right. The Duke of Parma, indeed, would not have subjected our country;
but it is by no means improbable that, if he had effected a landing,
the island would have been the theatre of a war greatly resembling that
which Hannibal waged in Italy, and that the invaders would not have been
driven out till many cities had been sacked, till many counties had been
wasted, and till multitudes of our stout-hearted rustics and artisans
had perished in the carnage of days not less terrible than those of
Thrasymene and Cannae.
While the pamphlets of Trenchard and Somers were in every hand, the
Parliament met.
The words with which the King opened the session brought the great
question to a speedy issue. "The circumstances," he said, "of affairs
abroad are such, that I think myself obliged to tell you my opinion,
that, for the present, England cannot be safe without a land force;
and I hope we shall not give those that mean us ill the opportunity of
effecting that under the notion of a peace which they could not bring to
pass by war. "
The speech was well received; for that Parliament was thoroughly well
affected to the Government. The members had, like the rest of the
community, been put into high good humour by the return of peace and by
the revival of trade. They were indeed still under the influence of
the feelings of the preceding day; and they had still in their ears
the thanksgiving sermons and thanksgiving anthems; all the bonfires had
hardly burned out; and the rows of lamps and candles had hardly been
taken down. Many, therefore, who did not assent to all that the King had
said, joined in a loud hum of approbation when he concluded. [3] As
soon as the Commons had retired to their own chamber, they resolved to
present an address assuring His Majesty that they would stand by him
in peace as firmly as they had stood by him in war. Seymour, who had,
during the autumn, been going from shire to shire, for the purpose of
inflaming the country gentlemen against the ministry, ventured to make
some uncourtly remarks; but he gave so much offence that he was hissed
down, and did not venture to demand a division. [4]
The friends of the Government were greatly elated by the proceedings
of this day. During the following week hopes were entertained that the
Parliament might be induced to vote a peace establishment of thirty
thousand men. But these hopes were delusive. The hum with which
William's speech had been received, and the hiss which had drowned the
voice of Seymour, had been misunderstood. The Commons were indeed warmly
attached to the King's person and government, and quick to resent any
disrespectful mention of his name. But the members who were disposed
to let him have even half as many troops as he thought necessary were
a minority. On the tenth of December his speech was considered in a
Committee of the whole House; and Harley came forward as the chief of
the opposition. He did not, like some hot headed men, among both
the Whigs and the Tories, contend that there ought to be no regular
soldiers. But he maintained that it was unnecessary to keep up, after
the peace of Ryswick, a larger force than had been kept up after the
peace of Nimeguen. He moved, therefore, that the military establishment
should be reduced to what it had been in the year 1680. The Ministers
found that, on this occasion, neither their honest nor their dishonest
supporters could be trusted. For, in the minds of the most respectable
men, the prejudice against standing armies was of too long growth and
too deep root to be at once removed; and those means by which the Court
might, at another time, have secured the help of venal politicians
were, at that moment, of less avail than usual. The Triennial Act was
beginning to produce its effects. A general election was at hand. Every
member who had constituents was desirous to please them; and it was
certain that no member would please his constituents by voting for a
standing army; and the resolution moved by Harvey was strongly supported
by Howe, was carried, was reported to the House on the following day,
and, after a debate in which several orators made a great display of
their knowledge of ancient and modern history, was confirmed by one
hundred and eighty-five votes to one hundred and forty-eight. [5]
In this debate the fear and hatred with which many of the best friends
of the Government regarded Sunderland were unequivocally manifested. "It
is easy," such was the language of several members, "it is easy to
guess by whom that unhappy sentence was inserted in the speech from the
Throne. No person well acquainted with the disastrous and disgraceful
history of the last two reigns can doubt who the minister is, who is now
whispering evil counsel in the ear of a third master. " The Chamberlain,
thus fiercely attacked, was very feebly defended. There was indeed in
the House of Commons a small knot of his creatures; and they were men
not destitute of a certain kind of ability; but their moral character
was as bad as his. One of them was the late Secretary of the Treasury,
Guy, who had been turned out of his place for corruption. Another was
the late Speaker, Trevor, who had, from the chair, put the question
whether he was or was not a rogue, and had been forced to pronounce
that the Ayes had it. A third was Charles Duncombe, long the greatest
goldsmith of Lombard Street, and now one of the greatest landowners of
the North Riding of Yorkshire. Possessed of a private fortune equal to
that of any duke, he had not thought it beneath him to accept the place
of Cashier of the Excise, and had perfectly understood how to make
that place lucrative; but he had recently been ejected from office by
Montague, who thought, with good reason, that he was not a man to be
trusted. Such advocates as Trevor, Guy and Duncombe could do little for
Sunderland in debate. The statesmen of the junto would do nothing for
him. They had undoubtedly owed much to him. His influence, cooperating
with their own great abilities and with the force of circumstances, had
induced the King to commit the direction of the internal administration
of the realm to a Whig Cabinet. But the distrust which the old traitor
and apostate inspired was not to be overcome. The ministers could not be
sure that he was not, while smiling on them, whispering in confidential
tones to them, pouring out, as it might seem, all his heart to them,
really calumniating them in the closet or suggesting to the opposition
some ingenious mode of attacking them. They had very recently been
thwarted by him. They were bent on making Wharton a Secretary of State,
and had therefore looked forward with impatience to the retirement of
Trumball, who was indeed hardly equal to the duties of his great place.
To their surprise and mortification they learned, on the eve of the
meeting of Parliament, that Trumball had suddenly resigned, and Vernon,
the Under Secretary, had been summoned to Kensington, and had returned
thence with the seals. Vernon was a zealous Whig, and not personally
unacceptable to the chiefs of his party. But the Lord Chancellor, the
First Lord of the Treasury, and the First Lord of the Admiralty, might
not unnaturally think it strange that a post of the highest importance
should have been filled up in opposition to their known wishes, and with
a haste and a secresy which plainly showed that the King did not wish to
be annoyed by their remonstrances. The Lord Chamberlain pretended that
he had done all in his power to serve Wharton. But the Whig chiefs were
not men to be duped by the professions of so notorious a liar. Montague
bitterly described him as a fireship, dangerous at best, but on the
whole most dangerous as a consort, and least dangerous when showing
hostile colours. Smith, who was the most efficient of Montague's
lieutenants, both in the Treasury and in the Parliament, cordially
sympathised with his leader. Sunderland was therefore left undefended.
His enemies became bolder and more vehement every day. Sir Thomas Dyke,
member for Grinstead, and Lord Norris, son of the Earl of Abingdon,
talked of moving an address requesting the King to banish for ever from
the Court and the Council that evil adviser who had misled His Majesty's
royal uncles, had betrayed the liberties of the people, and had abjured
the Protestant religion.
Sunderland had been uneasy from the first moment at which his name
had been mentioned in the House of Commons. He was now in an agony
of terror. The whole enigma of his life, an enigma of which many
unsatisfactory and some absurd explanations have been propounded, is at
once solved if we consider him as a man insatiably greedy of wealth and
power, and yet nervously apprehensive of danger. He rushed with ravenous
eagerness at every bait which was offered to his cupidity. But any
ominous shadow, any threatening murmur, sufficed to stop him in his full
career, and to make him change his course or bury himself in a hiding
place. He ought to have thought himself fortunate indeed, when, after
all the crimes which he had committed, he found himself again enjoying
his picture gallery and his woods at Althorpe, sitting in the House of
Lords, admitted to the royal closet, pensioned from the Privy Purse,
consulted about the most important affairs of state. But his ambition
and avarice would not suffer him to rest till he held a high and
lucrative office, till he was a regent of the kingdom. The consequence
was, as might have been expected, a violent clamour; and that clamour he
had not the spirit to face.
His friends assured him that the threatened address would not be
carried. Perhaps a hundred and sixty members might vote for it; but
hardly more. "A hundred and sixty! " he cried: "No minister can stand
against a hundred and sixty. I am sure that I will not try. " It must be
remembered that a hundred and sixty votes in a House of five hundred and
thirteen members would correspond to more than two hundred votes in the
present House of Commons; a very formidable minority on the unfavourable
side of a question deeply affecting the personal character of a public
man. William, unwilling to part with a servant whom he knew to be
unprincipled, but whom he did not consider as more unprincipled than
many other English politicians, and in whom he had found much of a very
useful sort of knowledge, and of a very useful sort of ability, tried to
induce the ministry to come to the rescue. It was particularly
important to soothe Wharton, who had been exasperated by his recent
disappointment, and had probably exasperated the other members of the
junto. He was sent for to the palace. The King himself intreated him
to be reconciled to the Lord Chamberlain, and to prevail on the Whig
leaders in the Lower House to oppose any motion which Dyke or Norris
might make. Wharton answered in a manner which made it clear that
from him no help was to be expected. Sunderland's terrors now became
insupportable. He had requested some of his friends to come to his house
that he might consult them; they came at the appointed hour, but found
that he had gone to Kensington, and had left word that he should soon
be back. When he joined them, they observed that he had not the gold key
which is the badge of the Lord Chamberlain, and asked where it was. "At
Kensington," answered Sunderland. They found that he had tendered his
resignation, and that it had been, after a long struggle, accepted.
They blamed his haste, and told him that, since he had summoned them to
advise him on that day, he might at least have waited till the morrow.
"To morrow," he exclaimed, "would have ruined me. To night has saved
me. "
Meanwhile, both the disciples of Somers and the disciples of Trenchard
were grumbling at Harley's resolution. The disciples of Somers
maintained that, if it was right to have an army at all, it must be
right to have an efficient army. The disciples of Trenchard complained
that a great principle had been shamefully given up. On the vital
issue, Standing Army or no Standing Army, the Commons had pronounced an
erroneous, a fatal decision. Whether that army should consist of five
regiments or of fifteen was hardly worth debating. The great dyke which
kept out arbitrary power had been broken. It was idle to say that the
breach was narrow; for it would soon be widened by the flood which would
rush in. The war of pamphlets raged more fiercely than ever. At the same
time alarming symptoms began to appear among the men of the sword. They
saw themselves every day described in print as the scum of society,
as mortal enemies of the liberties of their country. Was it
reasonable,--such was the language of some scribblers,--that an honest
gentleman should pay a heavy land tax, in order to support in idleness
and luxury a set of fellows who requited him by seducing his dairy maids
and shooting his partridges? Nor was it only in Grub Street tracts that
such reflections were to be found. It was known all over the town that
uncivil things had been said of the military profession in the House of
Commons, and that Jack Howe, in particular, had, on this subject,
given the rein to his wit and to his ill nature. Some rough and daring
veterans, marked with the scars of Steinkirk and singed with the smoke
of Namur, threatened vengeance for these insults. The writers and
speakers who had taken the greatest liberties went in constant fear
of being accosted by fierce-looking captains, and required to make an
immediate choice between fighting and being caned. One gentleman, who
had made himself conspicuous by the severity of his language, went about
with pistols in his pockets. Howe, whose courage was not proportionate
to his malignity and petulance, was so much frightened, that he retired
into the country. The King, well aware that a single blow given, at
that critical conjuncture, by a soldier to a member of Parliament might
produce disastrous consequences, ordered the officers of the army to
their quarters, and, by the vigorous exertion of his authority and
influence, succeeded in preventing all outrage. [6]
All this time the feeling in favour of a regular force seemed to be
growing in the House of Commons. The resignation of Sunderland had
put many honest gentlemen in good humour. The Whig leaders exerted
themselves to rally their followers, held meetings at the "Rose," and
represented strongly the dangers to which the country would be exposed,
if defended only by a militia. The opposition asserted that neither
bribes nor promises were spared. The ministers at length flattered
themselves that Harley's resolution might be rescinded. On the eighth of
January they again tried their strength, and were again defeated, though
by a smaller majority than before. A hundred and sixty-four members
divided with them. A hundred and eighty-eight were for adhering to the
vote of the eleventh of December. It was remarked that on this occasion
the naval men, with Rooke at their head, voted against the Government.
[7]
It was necessary to yield. All that remained was to put on the words
of the resolution of the eleventh of December the most favourable sense
that they could be made to bear. They did indeed admit of very different
interpretations. The force which was actually in England in 1680 hardly
amounted to five thousand men. But the garrison of Tangier and the
regiments in the pay of the Batavian federation, which, as they were
available for the defence of England against a foreign or domestic
enemy, might be said to be in some sort part of the English army,
amounted to at least five thousand more. The construction which the
ministers put on the resolution of the eleventh of December was, that
the army was to consist of ten thousand men; and in this construction
the House acquiesced. It was not held to be necessary that the
Parliament should, as in our time, fix the amount of the land force. The
Commons thought that they sufficiently limited the number of soldiers by
limiting the sum which was to be expended in maintaining soldiers. What
that sum should be was a question which raised much debate. Harley was
unwilling to give more than three hundred thousand pounds. Montague
struggled for four hundred thousand. The general sense of the House was
that Harley offered too little, and that Montague demanded too much. At
last, on the fourteenth of January, a vote was taken for three hundred
and fifty thousand pounds. Four days later the House resolved to
grant half-pay to the disbanded officers till they should be otherwise
provided for. The half-pay was meant to be a retainer as well as a
reward. The effect of this important vote therefore was that, whenever
a new war should break out, the nation would be able to command the
services of many gentlemen of great military experience. The ministry
afterwards succeeded in obtaining, much against the will of a portion of
the opposition, a separate vote for three thousand marines.
A Mutiny Act, which had been passed in 1697, expired in the spring of
1698. As yet no such Act had been passed except in time of war; and the
temper of the Parliament and of the nation was such that the ministers
did not venture to ask, in time of peace, for a renewal of powers
unknown to the constitution. For the present, therefore, the soldier was
again, as in the times which preceded the Revolution, subject to exactly
the same law which governed the citizen.
It was only in matters relating to the army that the government found
the Commons unmanageable. Liberal provision was made for the navy. The
number of seamen was fixed at ten thousand, a great force, according to
the notions of that age, for a time of peace. The funds assigned some
years before for the support of the civil list had fallen short of the
estimate. It was resolved that a new arrangement should be made, and
that a certain income should be settled on the King. The amount was
fixed, by an unanimous vote, at seven hundred thousand pounds; and the
Commons declared that, by making this ample provision for his comfort
and dignity, they meant to express their sense of the great things which
he had done for the country. It is probable, however, that so large a
sum would not have been given without debates and divisions, had it not
been understood that he meant to take on himself the charge of the Duke
of Gloucester's establishment, and that he would in all probability have
to pay fifty thousand pounds a year to Mary of Modena. The Tories
were unwilling to disoblige the Princess of Denmark; and the Jacobites
abstained from offering any opposition to a grant in the benefit of
which they hoped that the banished family would participate.
It was not merely by pecuniary liberality that the Parliament testified
attachment to the Sovereign. A bill was rapidly passed which withheld
the benefit of the Habeas Corpus Act, during twelve months more, from
Bernardi and some other conspirators who had been concerned in the
Assassination Plot, but whose guilt, though demonstrated to the
conviction of every reasonable man, could not be proved by two
witnesses. At the same time new securities were provided against a new
danger which threatened the government. The peace had put an end to the
apprehension that the throne of William might be subverted by foreign
arms, but had, at the same time, facilitated domestic treason. It was no
longer necessary for an agent from Saint Germains to cross the sea in
a fishing boat, under the constant dread of being intercepted by a
cruiser. It was no longer necessary for him to land on a desolate beach,
to lodge in a thatched hovel, to dress himself like a carter, or to
travel up to town on foot. He came openly by the Calais packet, walked
into the best inn at Dover, and ordered posthorses for London. Meanwhile
young Englishmen of quality and fortune were hastening in crowds to
Paris. They would naturally wish to see him who had once been their
king; and this curiosity, though in itself innocent, might have evil
consequences. Artful tempters would doubtless be on the watch for every
such traveller; and many such travellers might be well pleased to be
courteously accosted, in a foreign land, by Englishmen of honourable
name, distinguished appearance, and insinuating address. It was not to
be expected that a lad fresh from the university would be able to refute
all the sophisms and calumnies which might be breathed in his ear
by dexterous and experienced seducers. Nor would it be strange if he
should, in no long time, accept an invitation to a private audience
at Saint Germains, should be charmed by the graces of Mary of Modena,
should find something engaging in the childish innocence of the Prince
of Wales, should kiss the hand of James, and should return home an
ardent Jacobite. An Act was therefore passed forbidding English subjects
to hold any intercourse orally, or by writing, or by message, with the
exiled family. A day was fixed after which no English subject, who had,
during the late war, gone into France without the royal permission or
borne arms against his country was to be permitted to reside in this
kingdom, except under a special license from the King. Whoever infringed
these rules incurred the penalties of high treason.
The dismay was at first great among the malecontents. For English and
Irish Jacobites, who had served under the standards of Lewis or hung
about the Court of Saint Germains, had, since the peace, come over in
multitudes to England. It was computed that thousands were within the
scope of the new Act. But the severity of that Act was mitigated by a
beneficent administration. Some fierce and stubborn non-jurors who would
not debase themselves by asking for any indulgence, and some conspicuous
enemies of the government who had asked for indulgence in vain, were
under the necessity of taking refuge on the Continent. But the great
majority of those offenders who promised to live peaceably under
William's rule obtained his permission to remain in their native land.
In the case of one great offender there were some circumstances which
attracted general interest, and which might furnish a good subject to
a novelist or a dramatist. Near fourteen years before this time,
Sunderland, then Secretary of State to Charles the Second, had married
his daughter Lady Elizabeth Spencer to Donough Macarthy, Earl of
Clancarty, the lord of an immense domain in Munster. Both the bridegroom
and the bride were mere children, the bridegroom only fifteen, the bride
only eleven. After the ceremony they were separated; and many years
full of strange vicissitudes elapsed before they again met. The boy soon
visited his estates in Ireland. He had been bred a member of the Church
of England; but his opinions and his practice were loose. He found
himself among kinsmen who were zealous Roman Catholics. A Roman
Catholic king was on the throne. To turn Roman Catholic was the best
recommendation to favour both at Whitehall and at Dublin Castle.
Clancarty speedily changed his religion, and from a dissolute Protestant
became a dissolute Papist. After the Revolution he followed the fortunes
of James; sate in the Celtic Parliament which met at the King's Inns;
commanded a regiment in the Celtic army; was forced to surrender himself
to Marlborough at Cork; was sent to England, and was imprisoned in the
Tower. The Clancarty estates, which were supposed to yield a rent of not
much less than ten thousand a year, were confiscated. They were charged
with an annuity to the Earl's brother, and with another annuity to his
wife; but the greater part was bestowed by the King on Lord Woodstock,
the eldest son of Portland; During some time, the prisoner's life was
not safe. For the popular voice accused him of outrages for which the
utmost license of civil war would not furnish a plea. It is said that
he was threatened with an appeal of murder by the widow of a Protestant
clergyman who had been put to death during the troubles. After passing
three years in confinement, Clancarty made his escape to the Continent,
was graciously received at St. Germains, and was entrusted with the
command of a corps of Irish refugees. When the treaty of Ryswick had
put an end to the hope that the banished dynasty would be restored by
foreign arms, he flattered himself that he might be able to make his
peace with the English Government. But he was grievously disappointed.
The interest of his wife's family was undoubtedly more than sufficient
to obtain a pardon for him. But on that interest he could not reckon.
The selfish, base, covetous, father-in-law was not at all desirous
to have a highborn beggar and the posterity of a highborn beggar to
maintain. The ruling passion of the brother-in-law was a stern and
acrimonious party spirit. He could not bear to think that he was so
nearly connected with an enemy of the Revolution and of the Bill of
Rights, and would with pleasure have seen the odious tie severed even
by the hand of the executioner. There was one, however, from whom the
ruined, expatriated, proscribed young nobleman might hope to find a kind
reception. He stole across the Channel in disguise, presented himself at
Sunderland's door, and requested to see Lady Clancarty. He was charged,
he said, with a message to her from her mother, who was then lying on a
sick bed at Windsor. By this fiction he obtained admission, made himself
known to his wife, whose thoughts had probably been constantly fixed on
him during many years, and prevailed on her to give him the most tender
proofs of an affection sanctioned by the laws both of God and of man.
The secret was soon discovered and betrayed by a waiting woman. Spencer
learned that very night that his sister had admitted her husband to her
apartment. The fanatical young Whig, burning with animosity which he
mistook for virtue, and eager to emulate the Corinthian who assassinated
his brother, and the Roman who passed sentence of death on his son, flew
to Vernon's office, gave information that the Irish rebel, who had once
already escaped from custody, was in hiding hard by, and procured a
warrant and a guard of soldiers. Clancarty was found in the arms of his
wife, and dragged to the Tower. She followed him and implored permission
to partake his cell. These events produced a great stir throughout the
society of London. Sunderland professed everywhere that he heartily
approved of his son's conduct; but the public had made up its mind about
Sunderland's veracity, and paid very little attention to his professions
on this or on any other subject. In general, honourable men of both
parties, whatever might be their opinion of Clancarty, felt great
compassion for his mother who was dying of a broken heart, and his poor
young wife who was begging piteously to be admitted within the Traitor's
Gate. Devonshire and Bedford joined with Ormond to ask for mercy. The
aid of a still more powerful intercessor was called in. Lady Russell
was esteemed by the King as a valuable friend; she was venerated by
the nation generally as a saint, the widow of a martyr; and, when she
deigned to solicit favours, it was scarcely possible that she should
solicit in vain. She naturally felt a strong sympathy for the unhappy
couple, who were parted by the walls of that gloomy old fortress in
which she had herself exchanged the last sad endearments with one whose
image was never absent from her. She took Lady Clancarty with her to the
palace, obtained access to William, and put a petition into his hand.
Clancarty was pardoned on condition that he should leave the kingdom and
never return to it. A pension was granted to him, small when compared
with the magnificent inheritance which he had forfeited, but quite
sufficient to enable him to live like a gentleman on the Continent. He
retired, accompanied by his Elizabeth, to Altona.
All this time the ways and means for the year were under consideration.
The Parliament was able to grant some relief to the country. The land
tax was reduced from four shillings in the pound to three. But nine
expensive campaigns had left a heavy arrear behind them; and it was
plain that the public burdens must, even in the time of peace, be such
as, before the Revolution, would have been thought more than sufficient
to support a vigorous war. A country gentleman was in no very good
humour, when he compared the sums which were now exacted from him with
those which he had been in the habit of paying under the last two kings;
his discontent became stronger when he compared his own situation
with that of courtiers, and above all of Dutch courtiers, who had been
enriched by grants of Crown property; and both interest and envy made
him willing to listen to politicians who assured him that, if those
grants were resumed, he might be relieved from another shilling.
The arguments against such a resumption were not likely to be heard with
favour by a popular assembly composed of taxpayers, but to statesmen and
legislators will seem unanswerable.
There can be no doubt that the Sovereign was, by the old polity of the
realm, competent to give or let the domains of the Crown in such manner
as seemed good to him. No statute defined the length of the term which
he might grant, or the amount of the rent which he must reserve. He
might part with the fee simple of a forest extending over a hundred
square miles in consideration of a tribute of a brace of hawks to be
delivered annually to his falconer, or of a napkin of fine linen to be
laid on the royal table at the coronation banquet. In fact, there had
been hardly a reign since the Conquest, in which great estates had not
been bestowed by our princes on favoured subjects. Anciently, indeed,
what had been lavishly given was not seldom violently taken away.
Several laws for the resumption of Crown lands were passed by the
Parliaments of the fourteenth and fifteenth centuries. Of those laws the
last was that which, in the year 1485, immediately after the battle of
Bosworth, annulled the donations of the kings of the House of York. More
than two hundred years had since elapsed without any Resumption Act.
An estate derived from the royal liberality had long been universally
thought as secure as an estate which had descended from father to son
since the compilation of Domesday Book. No title was considered as more
perfect than that of the Russells to Woburn, given by Henry the Eighth
to the first Earl of Bedford, or than that of the Cecils to Hatfield,
purchased from the Crown for less than a third of the real value by
the first Earl of Salisbury. The Long Parliament did not, even in that
celebrated instrument of nineteen articles, which was framed expressly
for the purpose of making the King a mere Doge, propose to restrain him
from dealing according to his pleasure with his parks and his castles,
his fisheries and his mines. After the Restoration, under the government
of an easy prince, who had indeed little disposition to give, but who
could not bear to refuse, many noble private fortunes were carved out of
the property of the Crown. Some of the persons who were thus enriched,
Albemarle, for example, Sandwich and Clarendon, might be thought to have
fairly earned their master's favour by their services. Others had
merely amused his leisure or pandered to his vices. His mistresses were
munificently rewarded. Estates sufficient to support the highest rank in
the peerage were distributed among his illegitimate children. That these
grants, however prodigal, were strictly legal, was tacitly admitted by
the Estates of the Realm, when, in 1689, they recounted and condemned
the unconstitutional acts of the kings of the House of Stuart. Neither
in the Declaration of Right nor in the Bill of Rights is there a word on
the subject. William, therefore, thought himself at liberty to give
away his hereditary domains as freely as his predecessors had given away
theirs. There was much murmuring at the profusion with which he rewarded
his Dutch favourites; and we have seen that, on one occasion in the year
1696, the House of Commons interfered for the purpose of restraining
his liberality. An address was presented requesting him not to grant to
Portland an extensive territory in North Wales. But it is to be observed
that, though in this address a strong opinion was expressed that the
grant would be mischievous, the Commons did not deny, and must therefore
be considered as having admitted, that it would be perfectly legal. The
King, however, yielded; and Portland was forced to content himself with
ten or twelve manors scattered over various counties from Cumberland to
Sussex.
It seems, therefore, clear that our princes were, by the law of the
land, competent to do what they would with their hereditary estates.
It is perfectly true that the law was defective, and that the profusion
with which mansions, abbeys, chaces, warrens, beds of ore, whole
streets, whole market towns, had been bestowed on courtiers was greatly
to be lamented. Nothing could have been more proper than to pass a
prospective statute tying up in strict entail the little which still
remained of the Crown property. But to annul by a retrospective statute
patents, which in Westminster Hall were held to be legally valid, would
have been simply robbery. Such robbery must necessarily have made all
property insecure; and a statesman must be short-sighted indeed who
imagines that what makes property insecure can really make society
prosperous.
But it is vain to expect that men who are inflamed by anger, who are
suffering distress, and who fancy that it is in their power to obtain
immediate relief from their distresses at the expense of those who have
excited their anger, will reason as calmly as the historian who, biassed
neither by interest nor passion, reviews the events of a past age.
The public burdens were heavy. To whatever extent the grants of royal
domains were revoked, those burdens would be lightened. Some of the
recent grants had undoubtedly been profuse. Some of the living grantees
were unpopular. A cry was raised which soon became formidably loud. All
the Tories, all the malecontent Whigs, and multitudes who, without
being either Tories or malecontent Whigs, disliked taxes and disliked
Dutchmen, called for a resumption of all the Crown property which King
William had, as it was phrased, been deceived into giving away.
On the seventh of February 1698, this subject, destined to irritate
the public mind at intervals during many years, was brought under the
consideration of the House of Commons. The opposition asked leave to
bring in a bill vacating all grants of Crown property which had been
made since the Revolution. The ministers were in a great strait; the
public feeling was strong; a general election was approaching; it was
dangerous and it would probably be vain to encounter the prevailing
sentiment directly. But the shock which could not be resisted might be
eluded. The ministry accordingly professed to find no fault with the
proposed bill, except that it did not go far enough, and moved for leave
to bring in two more bills, one for annulling the grants of James the
Second, the other for annulling the grants of Charles the Second. The
Tories were caught in their own snare. For most of the grants of Charles
and James had been made to Tories; and a resumption of those grants
would have reduced some of the chiefs of the Tory party to poverty. Yet
it was impossible to draw a distinction between the grants of William
and those of his two predecessors. Nobody could pretend that the law
had been altered since his accession. If, therefore, the grants of the
Stuarts were legal, so were his; if his grants were illegal, so were
the grants of his uncles. And, if both his grants and the grants of his
uncles were illegal, it was absurd to say that the mere lapse of time
made a difference. For not only was it part of the alphabet of the law
that there was no prescription against the Crown, but the thirty-eight
years which had elapsed since the Restoration would not have sufficed
to bar a writ of right brought by a private demandant against a wrongful
tenant. Nor could it be pretended that William had bestowed his favours
less judiciously than Charles and James. Those who were least friendly
to the Dutch would hardly venture to say that Portland, Zulestein and
Ginkell was less deserving of the royal bounty than the Duchess of
Cleveland and the Duchess of Portsmouth, than the progeny of Nell Gwynn,
than the apostate Arlington or the butcher Jeffreys. The opposition,
therefore, sullenly assented to what the ministry proposed. From that
moment the scheme was doomed. Everybody affected to be for it; and
everybody was really against it. The three bills were brought in
together, read a second time together, ordered to be committed together,
and were then, first mutilated, and at length quietly dropped.
In the history of the financial legislation of this session, there were
some episodes which deserve to be related. Those members, a numerous
body, who envied and dreaded Montague readily became the unconscious
tools of the cunning malice of Sunderland, whom Montague had refused
to defend in Parliament, and who, though detested by the opposition,
contrived to exercise some influence over that party through the
instrumentality of Charles Duncombe. Duncombe indeed had his own reasons
for hating Montague, who had turned him out of the place of Cashier of
the Excise. A serious charge was brought against the Board of Treasury,
and especially against its chief. He was the inventor of Exchequer
Bills; and they were popularly called Montague's notes. He had induced
the Parliament to enact that those bills, even when at a discount in the
market, should be received at par by the collectors of the revenue.
This enactment, if honestly carried into effect, would have been
unobjectionable. But it was strongly rumoured that there had been
foul play, peculation, even forgery. Duncombe threw the most serious
imputations on the Board of Treasury, and pretended that he had been put
out of his office only because he was too shrewd to be deceived, and too
honest to join in deceiving the public. Tories and malecontent Whigs,
elated by the hope that Montague might be convicted of malversation,
eagerly called for inquiry. An inquiry was instituted; but the
result not only disappointed but utterly confounded the accusers. The
persecuted minister obtained both a complete acquittal, and a signal
revenge. Circumstances were discovered which seemed to indicate that
Duncombe himself was not blameless. The clue was followed; he was
severely cross-examined; he lost his head; made one unguarded admission
after another, and was at length compelled to confess, on the floor of
the House, that he had been guilty of an infamous fraud, which, but for
his own confession, it would have been scarcely possible to bring home
to him. He had been ordered by the Commissioners of the Excise to pay
ten thousand pounds into the Exchequer for the public service. He had in
his hands, as cashier, more than double that sum in good milled silver.
With some of this money he bought Exchequer Bills which were then at
a considerable discount; he paid those bills in; and he pocketed the
discount, which amounted to about four hundred pounds. Nor was this
all. In order to make it appear that the depreciated paper, which he had
fraudulently substituted for silver, had been received by him in payment
of taxes, he had employed a knavish Jew to forge endorsements of names,
some real and some imaginary. This scandalous story, wrung out of his
own lips, was heard by the opposition with consternation and shame,
by the ministers and their friends with vindictive exultation. It was
resolved, without any division, that he should be sent to the Tower,
that he should be kept close prisoner there, that he should be expelled
from the House. Whether any further punishment could be inflicted on him
was a perplexing question. The English law touching forgery became, at a
later period, barbarously severe; but, in 1698, it was absurdly lax. The
prisoner's offence was certainly not a felony; and lawyers apprehended
that there would be much difficulty in convicting him even of a
misdemeanour. But a recent precedent was fresh in the minds of all men.
The weapon which had reached Fenwick might reach Duncombe. A bill of
pains and penalties was brought in, and carried through the earlier
stages with less opposition than might have been expected. Some Noes
might perhaps be uttered; but no members ventured to say that the Noes
had it. The Tories were mad with shame and mortification, at finding
that their rash attempt to ruin an enemy had produced no effect except
the ruin of a friend. In their rage, they eagerly caught at a new hope
of revenge, a hope destined to end, as their former hope had ended, in
discomfiture and disgrace. They learned, from the agents of Sunderland,
as many people suspected, but certainly from informants who were well
acquainted with the offices about Whitehall, that some securities
forfeited to the Crown in Ireland had been bestowed by the King
ostensibly on one Thomas Railton, but really on the Chancellor of the
Exchequer. The value of these securities was about ten thousand pounds.
On the sixteenth of February this transaction was brought without
any notice under the consideration of the House of Commons by Colonel
Granville, a Tory member, nearly related to the Earl of Bath. Montague
was taken completely by surprise, but manfully avowed the whole truth,
and defended what he had done. The orators of the opposition declaimed
against him with great animation and asperity. "This gentleman,"
they said, "has at once violated three distinct duties. He is a privy
councillor, and, as such, is bound to advise the Crown with a view, not
to his own selfish interests, but to the general good. He is the first
minister of finance, and is, as such, bound to be a thrifty manager of
the royal treasure. He is a member of this House, and is, as such, bound
to see that the burdens borne by his constituents are not made heavier
by rapacity and prodigality. To all these trusts he has been unfaithful.
The advice of the privy councillor to his master is, 'Give me money. '
The first Lord of the Treasury signs a warrant for giving himself money
out of the Treasury. The member for Westminster puts into his pocket
money which his constituents must be taxed to replace. " The surprise
was complete; the onset was formidable; but the Whig majority, after
a moment of dismay and wavering, rallied firmly round their leader.
Several speakers declared that they highly approved of the prudent
liberality with which His Majesty had requited the services of a most
able, diligent and trusty counsellor. It was miserable economy indeed to
grudge a reward of a few thousands to one who had made the State richer
by millions. Would that all the largesses of former kings had been as
well bestowed! How those largesses had been bestowed none knew better
than some of the austere patriots who harangued so loudly against the
avidity of Montague. If there is, it was said, a House in England
which has been gorged with undeserved riches by the prodigality of weak
sovereigns, it is the House of Bath. Does it lie in the mouth of a son
of that house to blame the judicious munificence of a wise and good
King? Before the Granvilles complain that distinguished merit has been
rewarded with ten thousand pounds, let them refund some part of the
hundreds of thousands which they have pocketed without any merit at all.
The rule was, and still is, that a member against whom a charge is made
must be heard in his own defence, and must then leave the House. The
Opposition insisted that Montague should retire. His friends maintained
that this case did not fall within the rule. Distinctions were drawn;
precedents were cited; and at length the question was put, that Mr.
Montague do withdraw. The Ayes were only ninety-seven; the Noes two
hundred and nine. This decisive result astonished both parties. The
Tories lost heart and hope. The joy of the Whigs was boundless. It
was instantly moved that the Honourable Charles Montague, Esquire,
Chancellor of the Exchequer, for his good services to this Government
does deserve His Majesty's favour. The Opposition, completely cowed, did
not venture to demand another division. Montague scornfully thanked
them for the inestimable service which they had done him. But for
their malice he never should have had the honour and happiness of
being solemnly pronounced by the Commons of England a benefactor of his
country. As to the grant which had been the subject of debate, he was
perfectly ready to give it up, if his accusers would engage to follow
his example.
Even after this defeat the Tories returned to the charge. They pretended
that the frauds which had been committed with respect to the Exchequer
Bills had been facilitated by the mismanagement of the Board of
Treasury, and moved a resolution which implied a censure on that Board,
and especially on its chief. This resolution was rejected by a hundred
and seventy votes to eighty-eight. It was remarked that Spencer, as if
anxious to show that he had taken no part in the machinations of which
his father was justly or unjustly suspected, spoke in this debate with
great warmth against Duncombe and for Montague.
A few days later, the bill of pains and penalties against Duncombe
passed the Commons. It provided that two thirds of his enormous
property, real and personal, should be confiscated and applied to the
public service. Till the third reading there was no serious opposition.
Then the Tories mustered their strength. They were defeated by a hundred
and thirty-eight votes to a hundred and three; and the bill was carried
up to the Lords by the Marquess of Hartington, a young nobleman whom the
great body of Whigs respected as one of their hereditary chiefs, as the
heir of Devonshire, and as the son in law of Russell.
That Duncombe had been guilty of shameful dishonesty was acknowledged
by all men of sense and honour in the party to which he belonged. He had
therefore little right to expect indulgence from the party which he had
unfairly and malignantly assailed. Yet it is not creditable to the Whigs
that they should have been so much disgusted by his frauds, or so much
irritated by his attacks, as to have been bent on punishing him in a
manner inconsistent with all the principles which governments ought to
hold most sacred.
Those who concurred in the proceeding against Duncombe tried to
vindicate their conduct by citing as an example the proceeding
against Fenwick. So dangerous is it to violate, on any pretence, those
principles which the experience of ages has proved to be the safeguards
of all that is most precious to a community. Twelve months had hardly
elapsed since the legislature had, in very peculiar circumstances, and
for very plausible reasons, taken upon itself to try and to punish a
great criminal whom it was impossible to reach in the ordinary course
of justice; and already the breach then made in the fences which protect
the dearest rights of Englishmen was widening fast. What had last year
been defended only as a rare exception seemed now to be regarded as the
ordinary rule. Nay, the bill of pains and penalties which now had
an easy passage through the House of Commons was infinitely more
objectionable than the bill which had been so obstinately resisted at
every stage in the preceding session.
The writ of attainder against Fenwick was not, as the vulgar imagined
and still imagine, objectionable because it was retrospective. It
is always to be remembered that retrospective legislation is bad in
principle only when it affects the substantive law. Statutes creating
new crimes or increasing the punishment of old crimes ought in no case
to be retrospective. But statutes which merely alter the procedure, if
they are in themselves good statutes, ought to be retrospective. To take
examples from the legislation of our own time, the Act passed in 1845,
for punishing the malicious destruction of works of art with whipping,
was most properly made prospective only. Whatever indignation the
authors of that Act might feel against the ruffian who had broken the
Barberini Vase, they knew that they could not, without the most serious
detriment to the commonwealth, pass a law for scourging him. On the
other hand the Act which allowed the affirmation of a Quaker to be
received in criminal cases allowed, and most justly and reasonably, such
affirmation to be received in the case of a past as well as of a future
misdemeanour or felony. If we try the Act which attainted Fenwick by
these rules we shall find that almost all the numerous writers who
have condemned it have condemned it on wrong grounds. It made no
retrospective change in the substantive law. The crime was not new.
It was high treason as defined by the Statute of Edward the Third. The
punishment was not new. It was the punishment which had been inflicted
on traitors of ten generations. All that was new was the procedure;
and, if the new procedure had been intrinsically better than the old
procedure, the new procedure might with perfect propriety have been
employed. But the procedure employed in Fenwick's case was the worst
possible, and would have been the worst possible if it had been
established from time immemorial. However clearly political crime may
have been defined by ancient laws, a man accused of it ought not to be
tried by a crowd of five hundred and thirteen eager politicians, of whom
he can challenge none even with cause, who have no judge to guide them,
who are allowed to come in and go out as they choose, who hear as much
or as little as they choose of the accusation and of the defence, who
are exposed, during the investigation, to every kind of corrupting
influence, who are inflamed by all the passions which animated debates
naturally excite, who cheer one orator and cough down another, who are
roused from sleep to cry Aye or No, or who are hurried half drunk
from their suppers to divide. For this reason, and for no other, the
attainder of Fenwick is to be condemned. It was unjust and of evil
example, not because it was a retrospective Act, but because it was an
act essentially judicial, performed by a body destitute of all judicial
qualities.
The bill for punishing Duncombe was open to all the objections which can
be urged against the bill for punishing Fenwick, and to other objections
of even greater weight. In both cases the judicial functions were
usurped by a body unfit to exercise such functions. But the bill
against Duncombe really was, what the bill against Fenwick was not,
objectionable as a retrospective bill. It altered the substantive
criminal law. It visited an offence with a penalty of which the
offender, at the time when he offended, had no notice.
It may be thought a strange proposition that the bill against Duncombe
was a worse bill than the bill against Fenwick, because the bill against
Fenwick struck at life, and the bill against Duncombe struck only at
property. Yet this apparent paradox is a sober truth. Life is indeed
more precious than property. But the power of arbitrarily taking away
the lives of men is infinitely less likely to be abused than the power
of arbitrarily taking away their property. Even the lawless classes of
society generally shrink from blood. They commit thousands of offences
against property to one murder; and most of the few murders which they
do commit are committed for the purpose of facilitating or concealing
some offence against property. The unwillingness of juries to find a
fellow creature guilty of a capital felony even on the clearest evidence
is notorious; and it may well be suspected that they frequently violate
their oaths in favour of life. In civil suits, on the other hand, they
too often forget that their duty is merely to give the plaintiff a
compensation for evil suffered; and, if the conduct of the defendant has
moved their indignation and his fortune is known to be large, they turn
themselves into a criminal tribunal, and, under the name of damages,
impose a large fine. As housebreakers are more likely to take plate and
jewellery than to cut throats; as juries are far more likely to err on
the side of pecuniary severity in assessing damages than to send to the
gibbet any man who has not richly deserved it; so a legislature,
which should be so unwise as to take on itself the functions properly
belonging to the Courts of Law, would be far more likely to pass Acts of
Confiscation than Acts of Attainder. We naturally feel pity even for a
bad man whose head is about to fall. But, when a bad man is compelled to
disgorge his ill-gotten gains, we naturally feel a vindictive pleasure,
in which there is much danger that we may be tempted to indulge too
largely.
The hearts of many stout Whigs doubtless bled at the thought of what
Fenwick must have suffered, the agonizing struggle, in a mind not of
the firmest temper, between the fear of shame and the fear of death,
the parting from a tender wife, and all the gloomy solemnity of the
last morning.
