and CHAP. to reject the impeachment would be a denial of justice; LXXXIX. A. D. 1681. contrà. On the other side, the Lord Chancellor argued irresistibly, The Lord that whatever instances there might be to the contrary in Chancellor times of confusion and violence, a commoner was as little liable to be tried for his life by the House of Peers as a Peer by a petty jury, and he produced from the rolls of parliament (what had great weight) an "accord" made before Edward III. in full parliament, stating "that the judgment for high treason given by the Lords against the murderers of Edward II. should never be drawn into a precedent whereby they might be called upon to judge any others than Peers." The House resolved that Fitzharris should be proceeded decide with according to the course of the common law, and not against the by way of impeachment. Shaftesbury could only get nineteen other Peers to join him in opposing this resolution in the Lords, but the Commons in a flame immediately voted for him almost unanimously, "that it amounted to a denial of justice, a violation of the constitution of parliament, and an obstruction to the further discovery of the Popish plot; and that if any inferior Court should proceed to the trial of Fitzharris, it would be guilty of a high breach of the privileges of the House of Commons."* • Mr. Hallam, a high authority on all constitutional questions, has condemned this resolution of the Lords, contending that a commoner may be lawfully impeached before the Lords for a capital offence ( Const. Hist. ii. 603.), but I adhere to the opinion of those great lawyers, Hale (Jurisdiction of House of Lords, c. xiv.) and Blackstone (Com. iv. c. 19.), who lay down the contrary doctrine in the most explicit terms. 1. The provision of Magna Charta, "nec super eum ibimus nisi per legale judicium parium suorum," which is a statutory declaration of the common law, I think embraces every mode of prosecution. 2. De Beresford's case (4 Ed. 3.), in which the Lords with one voice said that he was not their peer, and that they were not bound to judge him as a Peer of the land, is conclusive to show the state of the law at that time, even if the proviso were not an act of parliament, which being "in full parliament," it seems to be. 3. Parliamentary impeachments were of more recent origin, and could not justly deprive English commoners of their birthright. 4. The instances of impeachments of commoners for high treason are very irregular, and more resemble acts The Lords impeach ment. Resolu- tions of the A com moner cannot be tried before the Lords on impeachment by the Commons of a capital offence. CHAP. LXXXIX. A. D. 1681. King's de termina tion to dissolve the Dissolu It so happened that these resolutions were passed on Saturday the 26th of March, the same day that there was a vote in favour of the Exclusion Bill. Charles thereupon formed his determination forthwith to dissolve the parliament, but he kept it a profound secret till the very moment it was to be executed. The Commons having complained of the parliament inconvenience of the Convocation house where they met, the kept secret. public theatre was fitting up for them, and during this day the King repeatedly came to the spot, and himself gave directions as to the most convenient manner of carrying on the works. During the Sunday he made "the wonderful accommodation he was providing for his faithful Commons" the frequent subject of his discourse, and every thing indicated a protracted session. On the Monday morning the King came to the House of Lords, as he was wont, in a sedan chair, the crown being secretly carried between his feet. Another chair followed with the curtains drawn, supposed to contain the Lord in waiting. The lid being raised, it was found stuffed with the King's robes. But here a formidable difficulty arose, for they were found to be by mistake the robes of the order of the Garter. So the chair was sent back again for the parliamentary robes, and a member of the House of Lords, who wished to escape from the room to tell what he had seen, was locked up till the chair returned. The King having instantly thrown the proper robes over him, and taken his seat on the throne in the House of Lords, the Black Rod was sent for the Commons, and found them listening in a tion. of attainder than judicial proceedings. 5. The waiver of the objection in such instances amounts to little. The five members prosecuted for high treason by the Attorney General before the Lords, allowed to be improperly prosecuted, did not plead to the jurisdiction more than Scroggs when impeached by the Commons. 6. The liability of a commoner to be impeached for a misdemeanour does not break in upon the rule, which has always been confined to capital cases. Thus for a misdemeanour, a Peer may be tried before a jury, as a commoner may before the Peers. 7. The resolution of the House of Lords to proceed against Sir Adam Blair and others, in 1690, after the opinion of the Judges that the record of 4 Ed. 3. was a statute, is entitled to no weight, as there never was any intention to do more than to frighten the defendants for publishing a libel; and the understanding in the profession ever since has been that a commoner cannot be tried for his life by the House of Lords. For a century and a half there has been no such proceeding, and although Lord Nottingham's position is said to be "dangerous and unfounded," such a proceeding we may venture to say will never again be attempted. See St. Tr. viii. 223. xii. 1207. Hat, Prec. iv. 50. Pamphlet by Sir W. Jones, 1681. A. D. 1681. very careless manner to some tedious remarks of Sir William CHAP. LXXXIX. Jones, an old lawyer, on the Lord Chancellor's "Accord, temp. Ed. III." Going up to the bar of the House of Lords, there they saw the King with the crown on his head, and heard him say, "My Lords and Gentlemen,-all the world may see we are not like to have a good end when the divisions at the beginning are such. Therefore, my Lord Chancellor, do as I have commanded you." Lord Chancellor." My Lords and Gentlemen, his Majesty has commanded me to say that it is his Majesty's royal will and pleasure that this parliament be dissolved, and this parliament is accordingly dissolved."* Charles instantly stepped into his carriage, and set off at full The King speed for Windsor. Shaftesbury, when he had recovered his breath, talked of sitting for the dispatch of business in spite of the dissolution, called on his friends not to separate, and sent several messengers to the Commons, entreating them to wait as the Lords were still sitting. But the members of the General popular party in both Houses gradually withdrew; Shaftes- dispersion. bury, almost deserted, went out into the streets, where he saw a general dispersion; in a few hours he found Oxford in its state of wonted torpidity, and, by way of relief to his troubled thoughts, he himself hurried off for London. † * 4 Parl. Hist. 1339. Examen, 104. + He had been lodged in Baliol College, to which he presented a magnificent piece of plate as a mark of his gratitude.— Rawleigh Redivivus, Part II. 101. leaves Ox ford. Shaftesbury re turns to London. CHAPTER XC. CONCLUSION OF THE LIFE OF LORD SHAFTESBURY. CHAP. April, 1681. Complete victory of the Court. Execution of Fitzharris, and of College. FOR some time after his arrival in London, Shaftesbury flattered himself that the dissolution of the parliament at Oxford, like former violent dissolutions, would aggravate the public discontent; but the victory of his opponents was complete, and Charles was enabled from henceforth for the rest of his reign to rule by prerogative,―to carry into execution all his plans, and, though the victim he most panted for escaped him, to execute a bloody revenge upon others who had incurred his resentment. There remained a most formidable popular party, and it was fortunate for the King that neither pecuniary difficulties nor the state of public affairs imposed upon him such a necessity for calling a parliament as, forty years before, had been felt by his father on the Scottish invasion; but there can be no doubt that there was now a considerable reaction in his favour, which arose partly from the general fickleness of the public mind, partly from Shaftesbury's dangerous character and designs being more clearly developed, partly from the proffered concessions to guard against a Popish succession; but, above all, from the discredit into which the Popish plot had fallen, and the desire of mankind to blame others for their own credulity and folly. Shaftesbury entrenched himself in the city of London, but saw that he would soon be assailed there. The government began the celebration of their triumph with the conviction and execution of Fitzharris, in spite of the resolution of the House of Commons, that, after their impeachment of him, his trial by the course of the common law would be a high breach of their privileges.* Still more alarming was 8 St. Tr. 243. the fate of COLLEGE," the Protestant Joiner," who, after a bill of indictment against him had been thrown out by a Middlesex grand jury, was carried down into Oxfordshire, under pretence that he had been guilty of an overt act of treason in that county, by going armed to the parliament,—and was there found guilty and put to death, although nothing was satisfactorily proved against him, except that he was a turbulent demagogue, who had gained great distinction by bawling out "No Popery." But the eyes of England and of all Europe were turned to the fate of the man who had so long held a divided sway with his Sovereign, and by whose destruction it was hoped that all further opposition to the plans of the Court would for ever cease. Early in the morning of the 2d of July, 1681, under a warrant from the Secretary of State, the Earl of Shaftesbury was apprehended at Thanet House, in Aldersgate Street, on a charge of high treason, his papers were seized, and he was carried, under a military escort, to be examined before the Council at Whitehall. Arriving there, he found the Council assembled, and the King had the bad taste to be present, having come from Windsor that morning for the pleasure of seeing his old friend and arch enemy in custody on a capital charge. him. Certain depositions were read against him made by Irish Evidence witnesses, who were to have been examined against the Duke against of York and the Queen, and who, accusing Shaftesbury of having suborned them, swore that he had entered into a conspiracy with them, in case he should be worsted in the parliament at Oxford, to carry his measures by an open insurrection, and that he had used many violent and threatening expressions against the King. The prisoner treated this charge with the utmost scorn, desiring to be confronted with the witnesses; and observing that, if he really could treat of such matters with such persons, he was fitter for Bedlam than the Tower. Among his papers was found the draught of an association rather of a dangerous nature; but it was not in his handwriting, and there was nothing to show that he had * 8 St. Tr. 549. |