benefices: they did not come there by inheritance; neither could they transmit their seats to their descendants: 2. there was no instance of a bishop since the Reformation having been tried by the house of lords: all such trials had been by a jury of commoners: commoners were then their peers, and of course they could not be the peers of the temporal lords; 3. it was admitted that they never voted on judgment of death: now the final judgment often depends on the preliminary proceedings, whence it followed that they ought not to vote on such preliminary proceedings. It was answered that in the ancient rolls of parliament, the spiritual lords were styled peers of the realm no less than the temporal lords: the only difference admitted between them was, that in one case the peerage was personal and transmitted by succession to the benefice, in the other hereditary and transmitted to the heirs of the body; and that if they had not voted in cases of blood, it was not because they had no right in law, but because in conformity with the canons of the church they had May waived their claim. The lords decided that the bishops 13. had a right "to stay in court in capital cases, till judg"ment of death came to be pronounced;" that is, “till the question of guilty or not guilty were put." That this decision was in strict accordance with the constitution, cannot be doubted; but its propriety was questioned by the commons *; pamphlets of the most defamatory description were published, and the chief among the 16. prelates expressed a wish to abandon the contest. When orders were given for the trial of the lords in the Tower, they asked leave to withdraw after the usual protestation: but the king insisted that they should at least be present and vote at the trial of the validity of Danby's pardon. His prerogative, he observed, was at

66

L. Journ. 570. 572. It was in conformity with the eleventh of the constitutious of Clarendon that the bishops, in virtue of their baronies, are bound to be present till "sentence is about to be pronounced of life or limb."

A.D. 1679.]

INQUIRY INTO BRIBES.

195

stake, and experience must have taught them that their interest was closely bound up with that of the sovereign; the debasement of the crown would be quickly followed by that of the mitre. The commons persisted in demanding that the trial of the pardon should precede that of the five lords, and that the bishops should be excluded May from such trial; but their efforts were fruitless: the 23. lords repeatedly adhered to their former vote *.

27.

To the colleagues of Shaftesbury in the new council, even to those of his own party, it was evident that he sought through the agency of his adherents in the house of commons to create embarrassment and confusion, that he might compel the king to accede to his favourite measures, and place himself with Monmouth, whom he governed, at the head of the administration. He had now brought into play a new engine, the secret committee of the house of commons, which in its endeavour to affix the charge of bribery and corruption on the late treasurer, had traced the annual payment of numerous sums under the denomination of the king's bounty, and of secret service money, to several members of the late parliament. The intermediate agents were Bertie, an officer in the excise, and Fox, treasurer of the navy. 23. The first refused to answer the committee without the royal permission; the second, a member of the house, was ordered to proceed to Whitehall in the custody of three of his colleagues, and to bring back to the house his books, notes, and acquittances. But the king did not sit down tamely under the insult: they had come to search his palace without his permission, and the lord chamberlain by his order commanded them in courteous but peremptory language to withdraw without the expected prize. On their return a list of the members of the last parliament was put into the hands of Fox: he was asked to which of those persons he had ever paid any sum of money, and he named seven-and-twenty individuals, many of whom immediately rose, and de

• C. Journ. May 15. 26. L. Journ. 575. 577. 580. 584. 586, 587.590. 594.

clared that their pensions had been granted to them in exchange for offices or beneficial interests which they May had resigned to the king. The house resumed the sub24. ject the next morning, and, having ordered the attendance of witnesses, adjourned the debate for three days*.

Enough had occurred to convince the king that concession served only to inflame the hopes, and embolden the efforts of Shaftesbury and his adherents. He already thought of a prorogation to prevent the prosecution of this new inquiry, when he received advice that an address of thanks to the commons was circulated for signature in the city, and that a remonstrance of a most inflammatory tendency was already prepared in one of the committees. His resolution was instantly formed; that the document might not be made public he con27. cealed his purpose from the council; and, sending unexpectedly for the commons, prorogued the parliament for the term of ten weeks. It was a sudden and unforeseen stroke to the popular party. At first they stood mute with astonishment: in a few minutes they gave vent to their indignation, and Shaftesbury declared, before he left the house, that the advisers of the measure should pay for their presumption with their heads.

There remains, however, to be noticed, what has since proved the most important event of this session. The writ of habeas corpus had been provided by the common law as a remedy against illegal imprisonment; but the benefits which it promised were gradually impaired and reduced by the ingenuity of lawyers, and the oppression of men in power. The judges assumed the right of granting or refusing the writ at discretion; the sheriffs and keepers invented pretexts to elude obedience; and the privy council hesitated not to send an obnoxious individual into some of the king's foreign dominions, and consequently beyond the jurisdiction of the courts. These abuses had been frequently exposed and lamented;

C. Journ. May 23, 24. Parl. Hist. iv. 1136-1148. + L. Journ. xiii. 595. Temple, ii. 504. Reresby, 96.

A.D. 1679.]

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and in almost every session of parliament, after the administration of lord Clarendon, attempts to remove them had been made: but bill after bill was lost, frequently by the marked opposition of the court, frequently in consequence of dissensions between the houses, and of successive prorogations. If it passed in the last session, it is chiefly to the exertions of Shaftesbury that we are indebted for the benefit; a benefit so indispensable for the security of personal liberty, that it may be thought to atone for much that was unjust and disgraceful in the career of that celebrated statesman. Its success depended on the result of a conference between the two houses: they fortunately agreed; and the king, who waited the return of the managers, gave the royal assent to the bill immediately before the prorogation. It made the granting of the writ, and the acceptance of bail for offences bailable by law, imperative on the chancellor and the judges even during the time of vacation; it took away all pretexts of disobedience on the part of officers holding persons in custody; it provided for the speedy trial or discharge of prisoners committed for felony or treason; and it abolished the practice of sending persons out of the country, and consequently out of the jurisdiction of the courts, by making such expatriation an offence subject to the most rigorous penalties, and rendering the offender incapable of receiving pardon from the sovereign. Still (so powerful was the influence of prejudice) care was taken to exclude all persons imprisoned in consequence of the plot from the benefit of the act, by limiting its operation to such commitments as should take place after the first day of the month of June*.

But from England our attention is now called to Scotland, which was still the theatre of civil and religious dissension. The covenanters, particularly in the western counties, continued to defy the authority of the

Parl. Hist. iv. 661. 1148. Stat. 31 Car. II. c. 2. By the 56 of Geo. III. this act has been considerably improved.

law; their obstinacy, partly through motives of interest, partly through attachment to the kirk, was countenanced and supported by the lords, who professed themselves enemies to Lauderdale; and the resistance of the people provoked the government to acts of vigour, which, if all that is related of them be true, betrayed an equal disregard both of the rights of the subject and the claims of humanity. Yet the historian who seeks to review these transactions with impartiality will generally find himself at a loss to determine what he ought to believe, and what to reject. On the one hand, the accusers are personal enemies, or men actuated by the wildest and most implacable fanaticism; on the other the trial of Mitchell disclosed, on the part of Lauderdale and his associates, a scene of prevarication and depravity which inclines the mind to give credit to whatever may be alleged to their prejudice. Mitchell, the reader will recollect, was the man who made the attempt on the life of archbishop Sharp. For some years he wandered through Holland and England: at length he returned to Edinburgh, married, and rented a small shop underneath the very lodging of that prelate. It happened one day that the eyes of Sharp met those of Mitchell; he thought that he recognised the features of the assassin; the object of his suspicion was apprehended, and on the person of the prisoner were found a small sword, and a pistol loaded with three bullets. At first he denied the charge; but having, in a private 1674. conference, received from Rothes, the chancellor, a Feb. promise of life, he repeatedly acknowledged his guilt in 10. presence of the council. When, however, he under

Mar.

12.

stood that it was still intended to punish him with the amputation of his hand and imprisonment for life, he revoked his confession; and the council in return, by an act entered in their register, revoked their promise*.

"He did altogether refuse to adhere to his said confessions, notwith"standing he was told.... that if he would adhere, he should have the benefit of the said assurance, and, if otherways, he should lose the