The History of England - Vols. 1 to 6 (507 page)

as is pretended, still more violent and irregular.

Thus the country party were dislodged from their strong hold in the city; where, ever since the commencement of factions in the English government, they had, without interruption, almost without molestation, maintained a superiority. It had been happy, had the partialities, hitherto objected to juries, been corrected, without giving place to partialities of an opposite kind: But in the present distracted state of the nation, an equitable neutrality was almost impossible to be attained. The court and church party, who were now named on juries, made justice subservient to their factious views; and the king had a prospect of obtaining full revenge on his enemies. It was not long before the effects of these alterations were seen. When it was first reported, that the duke intended to leave Scotland, Pilkington, at that time sheriff, a very violent man PLL v6.0 (generated September, 2011)

282

http://oll.libertyfund.org/title/793

Online Library of Liberty: The History of England, vol. 6

had broken out in these terms, “He has already burned the city; and he is now coming to cut all our throats?” For these scandalous expressions, the duke sued Pilkington; and enormous damages to the amount of 100,000 pounds were decreed him. By the law of England, ratified in the great charter, no fine or damages ought to extend to the total ruin of a criminal. Sir Patience Ward, formerly mayor, who gave evidence for Pilkington, was sued for perjury, and condemned to the pillory: A severe sentence, and sufficient to deter all witnesses from appearing in favour of those, who were prosecuted by the court.

But though the crown had obtained so great a victory in the city, 1683. Quo warrantos.

it was not quite decisive; and the contest might be renewed every year at the election of magistrates. An important project, therefore, was formed, not only to make the king master of the city, but by that precedent to gain him uncontrouled influence in all the corporations of England, and thereby give the greatest wound to the legal constitution, which the most powerful and most arbitrary monarchs had ever yet been able to inflict. A writ of
quo warranto
was issued against the city; that is, an enquiry into the validity of its charter. It was pretended, that the city had forfeited all its privileges, and ought to be declared no longer a corporation, on account of two offences, which the court of aldermen and common council had committed. After the great fire in 1666, all the markets had been rebuilt, and had been fitted up with many conveniences; and, in order to defray the expence, the magistrates had imposed a small toll on goods brought to market: in the year 1679, they had addressed the king against the prorogation of parliament, and had employed the following terms: “Your petitioners are greatly surprized at the late prorogation, whereby the prosecution of the public justice of the kingdom, and the making of necessary provisions for the preservation of your majesty and your protestant subjects, have received interruption.” These words were pretended to contain a scandalous reflection on the king and his measures. The cause of the city was defended against the attorney and solicitor generals, by Treby and Pollexsen.

These last pleaded, that, since the foundation of the monarchy, no corporation had ever yet been exposed to forfeiture, and the thing itself implied an absurdity: That a corporation, as such, was incapable of all crime or offence, and none were answerable for any iniquity but the persons themselves, who committed it: That the members, in choosing magistrates, had entrusted them with legal powers only; and where the magistrates exceeded these powers, their acts were void, but could never involve the body itself in any criminal imputation: That such had ever been the practice of England, except at the Reformation, when the monasteries were abolished; but this was an extraordinary case; and it was even thought necessary to ratify afterwards the whole transaction by act of parliament: That corporate bodies, framed for public good, and calculated for perpetual duration, ought not to be annihilated for the temporary faults of their members, who might themselves, without hurting the community, be questioned for their offences: That even a private estate, if entailed, could not be forfeited to the crown, on account of treason, committed by the tenant for life; but upon his demise went to the next in remainder: That the offences, objected to the city, far from deserving so severe a punishment, were not even worthy of the smallest reprehension. That all corporations were invested with the power of making bye-laws; and the smallest borough in England had ever been allowed to carry the exercise of PLL v6.0 (generated September, 2011)

283

http://oll.libertyfund.org/title/793

Online Library of Liberty: The History of England, vol. 6

this power farther than London had done in the instance complained of: That the city, having, at its own expence, repaired the markets, which were built too on its own estate, might as lawfully claim a small recompence from such as brought commodities thither, as a man might require rent for a house, of which he was possessed. That those who disliked the condition, might abstain from the market; and whoever paid, had done it voluntarily: That it was an avowed right of the subjects to petition; nor had the city in their address abused this privilege: That the king himself had often declared, the parliament often voted, the nation to be in danger from the popish plot; which, it is evident, could not be fully prosecuted but in a parliamentary manner: That the impeachment of the popish lords was certainly obstructed by the frequent prorogations; as was also the enacting of necessary laws, and providing for the defence of the nation: That the loyalty of the city, no less than their regard to self-preservation, might prompt them to frame the petition; since it was acknowledged, that the king’s life was every moment exposed to the most imminent danger from the popish conspiracy: That the city had not accused the king of obstructing justice, much less of having any such intention; since it was allowed, that evil counsellors were alone answerable for all the pernicious consequences of any measure: And that it was unaccountable, that two public deeds, which had not, during so long a time, subjected to any, even the smallest penalty, the persons guilty of them, should now be punished so severely upon the corporation, which always was, and always must be innocent.

It is evident, that those who would apologize for the measures of the court, must, in this case, found their arguments, not on law, but reasons of state.

The judges, therefore, who condemned the city, are inexcusable; 12th June.

since the sole object of their determinations must ever be the pure principles of justice and equity. But the office of judge was at that time held during pleasure; and it was impossible, that any cause, where the court bent its force, could ever be carried against it. After sentence was pronounced, the city applied in a humble manner to the king; and he agreed to restore their charter, but in return they were obliged to submit to the following regulations: That no mayor, sheriff, recorder, common serjeant, town clerk, or coroner, should be admitted to the exercise of his office without his majesty’s approbation: That if the king disapprove twice of the mayor or sheriffs elected, he may by commission appoint these magistrates: That the mayor and court of aldermen may, with his majesty’s leave, displace any magistrate: And that no alderman, in case of a vacancy, shall be elected without consent of the court of aldermen, who, if they disapprove twice of the choice, may fill the vacancy.

All the corporations in England, having the example of London Great power of the

before their eyes, saw how vain it would prove to contend with crown.

the court, and were, most of them, successively induced to surrender their charters into the king’s hands. Considerable sums were exacted for restoring the charters; and all offices of power and profit were left at the disposal of the crown. It seems strange, that the independent royalists, who never meant to make the crown absolute, should yet be so elated with the victory obtained over their adversaries, as to approve of a precedent, which left no national privileges in security, but enabled the king under like pretences, and by means of like instruments, to recall anew all those charters, which at present he was pleased to grant. And every friend to liberty must allow, that the nation, whose constitution was thus broken in the shock of PLL v6.0 (generated September, 2011)

284

http://oll.libertyfund.org/title/793

Online Library of Liberty: The History of England, vol. 6

faction, had a right, by every prudent expedient, to recover that security, of which it was so unhappily bereaved.

While so great a faction adhered to the crown, it is apparent, that resistance, however justifiable, could never be prudent; and all wise men saw no expedient but peaceably to submit to the present grievances. There was however a party of malcontents, so turbulent in their disposition, that, even before this last iniquity, which laid the whole constitution at the mercy of the king, they had meditated plans of resistance; at a time when it could be as little justifiable as prudent. In the spring 1681,
i
a little before the Oxford parliament, the king was seized with a fit of sickness at Windsor, which gave great alarm to the public.

The duke of Monmouth, lord Russel, lord Grey, instigated by the A conspiracy.

restless Shaftesbury, had agreed, in case the king’s sickness should prove mortal, to rise in arms and to oppose the succession of the duke. Charles recovered; but these dangerous projects were not laid aside. The same conspirators, together with Essex and Salisbury, were determined to continue the Oxford parliament, after the king, as was daily expected, should dissolve it; and they engaged some leaders among the commons in the same desperate measure. They went so far as to detain several lords in the house, under pretence of signing a protest against rejecting Fitz-harris’s impeachment: But hearing that the commons had broken up in great consternation, they were likewise obliged at last to separate. Shaftesbury’s imprisonment and trial put an end for some time to these machinations; and it was not till the new sheriffs were imposed on the city that they were revived. The leaders of the country party began then to apprehend themselves in imminent danger; and they were well pleased to find, that the citizens were struck with the same terror, and were thence inclined to undertake the most perilous enterprizes. Besides the city, the gentry and nobility in several counties of England were solicited to rise in arms. Monmouth engaged the earl of Macclesfield, lord Brandon, Sir Gilbert Gerrard, and other gentlemen in Cheshire; lord Russel fixed a correspondence with Sir William Courtney, Sir Francis Rowles, Sir Francis Drake, who promised to raise the west; and Trenchard in particular, who had interest in the disaffected town of Taunton, assured him of considerable assistance from that neighbourhood. Shaftesbury and his emissary, Ferguson, an independent clergyman and a restless plotter, managed the correspondence in the city, upon which the confederates chiefly relied. The whole train was ready to take fire; but was prevented by the caution of lord Russel, who induced Monmouth to delay the enterprize. Shaftesbury in the mean time was so much affected with the sense of his danger, that he had left his house, and secretly lurked in the city; meditating all those desperate schemes, which disappointed revenge and ambition could inspire. He exclaimed loudly against delay, and represented to his confederates, that having gone so far, and entrusted the secret into so many hands, there was no safety for them but in a bold and desperate prosecution of their purpose.

The projects were therefore renewed: Meetings of the conspirators were appointed in different houses, particularly in Shephard’s, an eminent wine-merchant in the city: The plan of an insurrection was laid in London, Cheshire, Devonshire, and Bristol: The several places of rendezvous in the city were concerted; and all the operations fixed. The state of the guards was even viewed by Monmouth and Armstrong, and an attack on them pronounced practicable: A declaration to justify the enterprize to the public was read and agreed to: And every circumstance seemed now to render an PLL v6.0 (generated September, 2011)

285

http://oll.libertyfund.org/title/793

Online Library of Liberty: The History of England, vol. 6

insurrection unavoidable; when a new delay was procured by Trenchard, who declared, that the rising in the west could not for some weeks be in sufficient forwardness.

Shaftesbury was enraged at these perpetual cautions and delays in an enterprize, which, he thought, nothing but courage and celerity could render effectual: He threatened to commence the insurrection with his friends in the city alone; and he boasted, that he had ten thousand
brisk boys,
as he called them, who, on a motion of his finger, were ready to fly to arms. Monmouth, Russel, and the other conspirators, were, during some time, in apprehensions, lest despair should push him into some dangerous measure; when they heard, that, after a long combat between fear and rage, he had at last abandoned all hopes of success, and had retired into Holland. He lived in a private manner at Amsterdam; and for greater security desired to be admitted into the magistracy of that city: But his former violent counsels against the Dutch commonwealth were remembered;

and all applications from him were rejected. He died soon after; Shaftesbury retires

and his end gave neither sorrow to his friends, nor joy to his and dies.

enemies. His furious temper, notwithstanding his capacity, had done great injury to the cause, in which he was engaged. The violences and iniquities, which he suggested and encouraged, were greater than even faction itself could endure; and men could not forbear sometimes recollecting, that the same person, who had become so zealous a patriot, was once a most prostitute courtier. It is remarkable, that this man, whose principles and conduct were, in all other respects, so exceptionable, proved an excellent chancellor; and that all his decrees, while he possessed that high office, were equally remarkable for justness and for integrity. So difficult is it to find in history a character either wholly bad or perfectly good; though the prejudices of party make writers run easily into the extremes both of panegyric and of satire!