of the country. One of them described him as a fairy fiend that haunted and deluded both Houses." He brought an action of defamation against Lord Digby, for saying to him at a county meeting, "You are against the King, and for seditions and factious aid for a Commonwealth, and, by God, we will have your head next parliament." He recovered a verdict with 10007. damages and costs.* *

After this protracted and stormy recess, the same parliament again met (its 15th session) in February, 1677. The ground [A.D. 1677.] now seized by Shaftesbury was, that in point of law the parliament must be taken to have been dissolved, and that there was no longer any lawful parliament in existence. As soon as the King had withdrawn he put up Buckingham to make this objection, and to deliver an argument he himself had prepared, "that a continuous prorogation for more than a year was tantamount to a dissolution, by virtue of the statutes 4 Ed. III. c. 14, and 36 Ed. III. c. 10, which require that a parliament be holden every year once, and more often if need be: now, on the last prorogation, the present parliament could not meet within a year, and as the King could not be supposed to have meant to have put it out of his power to obey the law, the just intendment was that he dissolved the old parliament, so that he might within the year call a new one as the law requires,-an intendment greatly strengthened by the consideration that nearly seventeen years had elapsed since this [A.D. 1677.] parliament had been elected, and that it would be indecent

to impute a design to the King to make it last during his

whole reign.' As soon as Buckingham sat down, a motion was made that he be called to the bar for the insult which he had offered to the House, and the Lord Keeper resorted to the miserable quibble, that the words “if need be" override the whole clause, leaving it to the King to consider whether there was any occasion to call parliament even once a year, -and went so far as to hint at the doctrine that no act of parliament interfering with the essential prerogative of the Crown in calling or dissolving parliaments is binding. Shaftesbury was in hopes of aid from the Catholic Peers; but they remaining silent, he was called up, and he gallantly insisted that the individuals by whom he was surrounded were no House of parliament, and that no one was bound to respect their proceedings,-treating with scorn the Lord Keeper's construction of the statute, and his unconstitutional limitation of the supremacy of parliament,-" for which the Lord Keeper ought to be called to the bar, instead of the Duke of Buckingham." He was supported by Lords Salisbury and Wharton.

After a debate of five hours it was resolved that Buckingham, Shaftesbury, Salisbury, and Wharton, should retract their opinion, acknow

* Juries were then sometimes much more liberal, giving 100,000l. in actions of defamation and scan. mag. On this occasion the foreman said " they would have given larger damages, but that they considered Lord Digby's father (Earl of Bristol) was still alive, Lord Digby had a very small estate in hand, and they did not wish to perpetuate a feud between the two families."

ledge that their conduct was " ill advised," and beg pardon of the King and the House. Shaftesbury, as the chief delinquent, was first commanded to submit, and, on his refusal, was committed to the Tower "during the pleasure of the King and the House." There he lay above a year, and he could not recover his liberty without considerable humiliation.

This was a bold but an imprudent movement, for he might have foreseen that the notion of a virtual dissolution would be highly distasteful to the Commons, and not well relished in the Lords, so that the support of it would place him at the mercy of his enemies. Buckingham, Salisbury and Wharton, who were committed along with him, after an imprisonment of a few months, made their submission and were discharged; but he still disdained such a course, and suing out a writ of habeas corpus before the Court of King's Bench, he [JUNE 27, 1677.] insisted that the commitment was illegal, and that he was entitled, as a matter of right, to be unconditionally set free, or at all events to be bailed.

It must have been a scene of considerable interest when an Earl, an Ex-Lord Chancellor, and the head of a great political party was brought up in custody, and, after arguments from his counsel, pleaded his own cause. He put very strongly the objection that the warrant of commitment was bad, being merely " for high contempts against this House,' without specifying what the contempts were, so that he might have been committed for something wholly frivolous, as the cut of his beard, or something that he had done in the strict discharge of his duty,-as obeying the process of the law-which either House of parliament might construe into a contempt. He powerfully urged that, as a warrant in this form by the King or any other magistrate would be void, there could be no reason why we should bind our necks to the yoke of assemblies established to protect-not to extinguish-our liberties. To the taunt of the Attorney-General, that being a Peer he should stand up for the privileges of the peerage, he said, "It is true I am a Peer, and no man hath a greater reverence or esteem for the Lords than myself; but I hope my being a Peer shall not lose my being an Englishman, or make me to have less title to MAGNA CHARTA and the other laws of English liberty. I desire your Lordships well to consider what rule you make in my case, for it will be a precedent that in future ages may concern every man in England."

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

Shaftesbury was remanded, and found himself in "a false position."

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

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

At last, in February, 1678, he condescended to petition that he might be brought to the bar to apologise for the offence he had given. His application to the Court of King's Bench was now represented as the great aggravation of his crime, and Danby tried to shut him out from a hearing, on account of some contemptuous words respecting the House of Lords he was charged with then using—but the witness called could not prove them.

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

The Lords, with white staves, were ordered to inform the King that the House was satisfied, and Shaftesbury was allowed [FEB. 27, 1678.] to resume his seat.

During the short glimpse of power and favour which he enjoyed two years after, he contrived by a vote of the House of Lords to have all these proceedings condemned as unparliamentary and unconstitutional, "and that the entry of them on the Journals should be vacated, so that they might never be drawn into precedent for the future."*

Upon his discharge, he found his influence very much diminished. Danby, whose policy in the race for popularity was to [A. D. 1678.] take the wind out of the sails of his competitor, had gained great popularity with the Protestants. The marriage of the Princess Mary, the eldest daughter of the Duke of York and next in succession to the Crown, with the Prince of Orange, now at the head of the Protestant interest in Europe, had been followed up by the treaty of Nimeguen, which drew the Protestant states into closer amity, and placed on a respectable footing the foreign relations of the country. Shaftesbury resumed his opposition with vigour, but down to the prorogation in the end of June, could find no opportunity of seriously embarrassing the measures of the government, and he agitated against the Duke of York and the Papists with little hope of ever again being the idol of a great party.†

* Lords' Jour., Nov. 13, 1680.

+ 4 Parl. Hist. 977-1004.

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

CHAPTER LXXXIX.

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

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

On the meeting of parliament, Danby, that he might anticipate Shaftesbury, brought forward the subject of the Popish [Oct. 21, 1678.] Plot in the Lords, contrary to the advice of the King,

who said, "You will find you have given the parliament a handle to ruin yourself as well as to disturb all my affairs, and you will surely live to repent it." Shaftesbury soon took the matter out of Danby's hands, and carried resolutions for a committee to inquire into the horrible conspiracy,-for the removal of Popish recusants from London, -for appointing the train-bands of London and Westminster to be in readiness, for sending Lords Powis, Stafford, Arundel, Peters, and Bellasis to the Tower, as Papists, and traitors, and for declaring "that there hath been and still is a damnable [A. D. 1678.] and hellish plot continued and carried on by Popish recusants for assassinating the King, subverting the government, and rooting out and destroying the Protestant religion." He was chairman of the Com

* 4 Parl. Hist. 1022.

mittee of the House of Lords for prosecuting the inquiry; and, superseding the government who wished to conduct it, took the whole management of it into his own hands. He was always at his postreceiving informations, granting warrants for searches and arrests, examining and committing prisoners, and issuing instructions to officers, informers, and gaolers. He converted, with consummate art, every succeeding occurrence into a confirmation of the plot, and by inflaming the passions of the people was able to direct them at his pleasure. From being lately nearly isolated as a party-leader, and somewhat contemned for his inglorious release from imprisonment, the popular delirium now placed him at the head of a decided majority in bath Houses, and the ministers were allowed to remain in office only till it suited his purpose to remove them.

He

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

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

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