in which it had been granted. The committee finding no entry of the pardon in any of the public offices, requested information on the subject from the Lord Chancellor, who stated to them how "his Majesty commanded the seal to be taken out of the bag, which his Lordship was obliged to submit unto, it not being in his power to hinder it, and then writing his name on the top of the parchment, had the pardon sealed; and that at the very time of affixing the seal to the parchment he did not look upon himself to have the custody of the Seal. ”* The Commons sent a message to the Lords demanding justice on the Earl of Danby, and an address to the King, complaining of the irregularity and illegality of the pardon. Although Danby, after a temporary concealment, surrendered himself, and was committed to the Tower, where he lay under this charge five years,-on account of the temporary introduction of Shaftesbury into the ministry, and the rapid events which followed till the dissolution of the Oxford parliament, the impeachment was not prosecuted, and the grand question which the plea in bar raised was never judicially determined. Nor was it even expressly set at rest by the Bill of Rights, notwithstanding a vote of the House of Commons at the time of the Revolution that a pardon is not pleadable in bar of an impeachment. But at last, by the Act of Settlement, 12 & 13 W. 3. c. 2., it was enacted, "That no pardon under the Great Seal of England be pleadable to an impeachment by the Commons in parliament." This restriction is necessary for discovering and exposing ministerial delinquency; but after conviction the power of pardon is vested in the Crown, to be exercised by responsible advisers, - where the prosecution has been by impeachment as well as in the name of the King†, although, according to the old law, where a capital prosecution was instituted by appeal at the suit of the party injured the prosecutor might pardon, but the King could not. ‡ * 4 Parl. Hist. 1114. 11 St. Tr. 766. After the conviction on impeachment of the six rebel lords in 1715, three of them were pardoned. 4 Bl. Com. 400. CHAP. XCII. CHAP. Notting ham and Shaftesbury sit next each other in It must have been an amusing sight, immediately after this controversy about Danby's pardon, during which Shaftesbury had vowed that "he would have Nottingham's head,” to have seen the two sitting next each other in council, and seemingly on terms of cordiality. But they hated each other as much as ever, and secretly prepared for a rupture. Nottingham, not same cabi- venturing openly to oppose Shaftesbury's Habeas Corpus Bill, in vain intrigued to have it thrown out, by the expedient of a difference between the two Houses, which had been so successfully worked against himself. net. Final quarrel between them of Hopes were entertained that Shaftesbury might now be prevailed upon to give up his Exclusion Bill; but he, feeling that his only chance of permanent power was to compel the King to take him for his sole minister, and to recognise Monmouth for his successor, thwarted the measures Nottingham and the inner cabinet, and showed himself as hostile as ever to the Duke of York. It was no surprise to Nottingham, although it was to Shaftesbury, when the King, without any previous deliberation with the Council, suddenly turned round to him, and ordered him first to prepare a commission for proroguing parliament, and then a proclamation to dissolve it.* Shaftesbury being immediately turned out of office, Nottingham and he for the rest of their days were at open and mortal enmity with each other. CHAPTER XCIII. CONCLUSION OF THE LIFE OF LORD NOTTINGHAM. CHAP. XCIII. of Shaftes bury over ham in DURING the short parliament which met in October, 1680, Nottingham, under the Earl of Halifax, assisted the ministerial majority in the House of Lords to counteract the schemes of Shaftesbury, who made a stout fight in his own House, and dictated all the resolutions of the other. The Exclusion Bill being renewed in the Commons was followed up by addresses to remove Halifax and Seymour, who opposed it, and by impeachments of Scroggs, Jeffreys, and North, for their obstruction of the prosecution of the Duke of York as a Popish recusant, and their interference with the right of petitioning. In spite of Nottingham's very superior legal Superiority acquirements, Shaftesbury seems generally to have had the advantage over him in debate, even on constitutional ques- Nottingtions, the "Patriot" making up for his deficiency in know- debate. ledge by boldness of assertion and bitterness of sarcasm. The poor Lord Chancellor, leading such an uneasy life, must have very heartily concurred in the resolution to put a sudden end to this parliament; and, thankful for the respite, must joy- Jan. 18. fully have pronounced the words by which it was dissolved, although another was summoned to meet at Oxford as a last experiment, before laying parliaments entirely aside. On the last day of the session he assisted the King in a most unworthy manœuvre, -to steal from the table a disagreeable Bill, which both Houses had passed "for the protection of Dissenters from being prosecuted for not going to their parish church,"-so that it was defeated without the odium of a public exercise of the royal veto.* This affair might have led to very serious consequences to the Chancellor if he had been questioned for it by a patriotic House of Commons, backed by an approving public; but the House Ante, p. 354. 1681. Nottingham assists in sup pressing a Bill passed by the two Houses. CHAP. XCIII. March 21. 1681. Parliament Shaftes bury. of Commons was outrageously factious, the public were disgusted with it, and he escaped. When the Oxford Parliament met, fortune favoured him in every thing. The Commons took up with great at Oxford. eagerness the stealing of the Dissenters' Relief Bill; but they rejected with contumely all the King's proferred concessions to guard the reformed religion from the Popish successor, by banishing him from the kingdom for life, and providing that the next Protestant heir should govern as Regent in his name; —and, to defeat the government prosecution of their informer Fitzharris, they resolved that they would themselves Indiscreet impeach him for high treason before the House of Lords. conduct of This last was Shaftesbuty's fatal blunder. A great many Protestant zealots still stuck by him for the "exclusion," while the more discerning members of his party now saw through his design of gaining power to himself by trying to establish the legitimacy of the Duke of Monmouth ; — but nearly all were shocked by observing a capital prosecution sported with as an instrument of faction, and an attempt to try a commoner for his life before those who were not his peers. Nottingham dexterously seized the advantage presented him, and advised the Lords to reject the impeachment, on the ground that Fitzharris, as a commoner, was entitled to be tried specting for this offence by a jury of commoners. We have a very peachment imperfect report of his speech on this occasion; but he seems very successfully to have thrown odium on the House of Commons for betraying the rights of their constituents, under pretence of supporting their own privileges; and he brought forward, with prodigious effect, the precedent of the judgment on the murderers of Edward II., where it was declared in full parliament that commoners should not thereafter be tried on a capital charge by the House of Lords.* Advantage gained by Notting ham re the im of Fitzhar ris. Sudden dissolution of Oxford ment While the Commons voted the rejection of the impeachment "a denial of justice," the nation on this question took parliament, part with the Lords; and the sudden dissolution of the parliament gave a decided victory to the Court. † March 28. 1681. See ante, p. 357. Hale's Jurisdiction of the House of Lords, c. xiv. † 4 Parl. Hist. 1298-1339. XCIII. Here ended Nottingham's senatorial career, the King CHAP. ruling by high prerogative alone during the rest of his reign. 66 Earl of Pembroke and Mont gomery. He had on two other occasions, which I have not men- Trial of tioned, presided in the Lords as High Steward on the trial of Peers. The first was that of the Earl of Pembroke and Montgomery, for the murder of a Mr. Cony in an affray in a tavern. In a note to his MS. Reports, Nottingham has left an account of the ceremonial on this occasion, to which he seems to have attached great importance. Being come to the Lords' House, and retired to putt on my robes, after prayers said, wee adjourned the House into Westminster Hall, and went, in the order prescribed, through the Painted Chamber, Court of Requests, and Court of Wards, into the Hall. In which procession the Duke of York and Prince Rupert*, to do honour to the King's Lieutenant (for so they called me), gave me the precedence, and suffered me to come last all the while, till the tryall was over and the white staff broaken. When we came into Westminster Hall, the Court was prepared like the House of Peers in all points; with scaffolds on each side for the spectators, and a place for all the foreign ministers. So the Lords spirituall and temporall did quickly know their own places. I took my place upon the woolsack, near the cloth of state, but not directly under it, haveing first made my obeysance to the chaire, and then to the King and Queen, who satt by al incognito." The Lord High Steward is reported to have delivered a preliminary address to the noble prisoner, by way of encou raging him, which seems to have been in a strange taste. "Let not the disgrace of standing as a felon at the bar too much deject you; no man's credit can fall so low but that, if he bear his shame as he should do, and profit by it as he ought to do, it is in his own power to redeem his reputation. Therefore let no man despair that desires and endeavours to recover himself again; much less let the terrors of justice affright you; for though your Lordship have great cause to fear, yet whatever may be lawfully hoped for, your Lordship may expect from the Peers." * Duke of Cambridge, but he still went by his nom de guerre. |