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III. The Whig Theory of The Constitution in The Reign of Charles II

Part of: Retrospect: The Ancient Constitution and the Languages of Political Thought

Published online by Cambridge University Press:  20 December 2011

B. Behrens
B. Behrens
Affiliation:
Fellow of Newnham College and Lecturer in the University

Extract

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No description of the theory of the constitution which the Whigs Professed in the five years of their existence as a political party in Charles II's reign, can be adequately made except in relation to the position in which they found themselves during this period. For though their view of what the constitution ought to be was to a considerable extent built up on ideas inherited from past ages and especially from the previous half-century, as it was formulated between 1678 and 1683 it was designed to justify a particular set of actions, and to advocate a type of government appropriate to the needs of a group of people at a particular moment.

Type
Articles
Information
Cambridge Historical Journal , Volume 7 , Issue 1 , 1941 , pp. 42 - 71
Copyright
Copyright © Cambridge University Press 1941

References

1 Cf. Shaftesbury, , Letter from a Person of Quality to his Friend in the Country, printed inGoogle ScholarCobbett's, Parl[iamentary] Hist[ory], iv, xxxixGoogle Scholar.

2 So many members of the Cavalier Parliament were in receipt of money and pensions from various sources and had come to depend on them for a livelihood [cf. Burnet, , History [of my Own Time], ed. Airy, (1900), 89Google Scholar; Marvell, , Growth of Popery and Arbitrary Government (1678)Google Scholar; Beer, De, Bulletin of the Institute of Historical Research, XI, no. 31]Google Scholar that the Country party came to realize that in ordinary circumstances it would be impossible to muster a majority in favour of a dissolution, or to pass any measure against bribery, even though it was universally admitted to be a crying scandal.

3 Cf. Burnet, , History, 155Google Scholar.

4 Cf. Letter from a person of Quality to his Friend in the Country. Cobbett, , Part. Hist., iv, livGoogle Scholar.

5 P[ublic] R[ecord] O[ffice], Baschet Transcripts. Barillon to Louis XIV, 16 Sept. 1678.

6 A letter from a Gentleman in the City to one in the Country concerning the Bill for Disabling the Duke of York… (1680).Google Scholar Bodl[eian] Libr[ary]. Godwyn Pamphlets, 1864 (26).

7 Not very many speeches in this category appear to have been printed. There is, however, a certain number; see infra, notes 29 and 30.

8 Before the meeting of the Oxford Parliament the Whig constituencies sent these addresses to their newly-elected members. Those from the counties were usually in the name of the Grand Jury, or the ‘Gentlemen and Freeholders’, those from the boroughs in the name of the whole borough, or the Mayor, Alderman and Common Council. The addresses generally expressed the constituents' thanks to the members for their services in the last parliament, and then proceeded to outline the programme which it was desired that they should pursue in the coming one. In view of the methods usually adopted on such occasions, there is every reason to suppose that these addresses were not a spontaneous expression of opinion but the work of an organized group of Whigs in the localities concerned. The difference in phraseology, however, and in subject matter, is sufficient to prove that they were not all copies of one model, though some were obviously copied from others. They were printed in extenso in the Whig newspapers, and afterwards produced in one volume entitled the Vox Patriae, which went into several editions and of which copies exist in most of the collections of pamphlets of this period.

9 These were also printed in considerable numbers in the Whig newspapers; notably in the Protestant (Domestic) Intelligence.

10 The most illuminating, because the most explicit, exposition of what the Whigs meant by ‘reason’ is to be found in Sidney's Discourses [Concerning Government]. Cf. particularly p. 3 (ed. of 1704), where ‘reason’ is described as ‘… common notion(s) written in the hearts of men, denied by none but such as are degenerated into beasts’. Frequently it is equated with common sense. (Cf. pp. 48, 60, 92.) Thus interpreted it is to be distinguished from ‘reason’ as invoked by the lawyers, who understood by it ‘the reason of the Common Law’, i.e. ‘the trained and enlightened reason, founded upon and directed by that reasoning of ages of judicial decisions, by which the principle to be applied to the particular case is found and when found followed’ (Bellot, H. H. L., ‘The Rule of Law’, Quart[erly] Rev[iew] (1926), 394).Google Scholar Thus when Winnington, arguing against the validity of Danby's pardon, said: ‘I dare not offer that violence to my reason as to say that this is a good pardon’ (Grey, Anchitel, Parliamentary Debates, VII, 181)Google Scholar, it is clear from the rest of his argument that it is of ‘reason’ in this sense that he is speaking. The law, he maintains, prevents the King from protecting any man from the legal consequences of a crime which involves loss or damage to others. Thus it is ‘unreasonable’ that Danby, who has brought the whole nation to the verge of ruin, should be pardoned. In this article, when reference is made to the argument from ‘reason’ as used by the Whigs, ‘reason’ is understood in the sense in which Sidney used it. In the sense in which Winnington used it ‘reason’ must be equated with the conclusions assumed to be deducible from law and precedent, as distinct from conclusions which it was usually held that law and precedent supported, but which were deduced from other premises.

11 Cf. Sidney, , Discourses (1704), 262.Google Scholar The same point of view is maintained explicitly or implicitly by all Whig writers who touch on the subject. Notably it appears in the pamphlets on the Exclusion, referred to below.

12 This is not of course to say that all Whig writers always used both lines of argument. Everyone did whose thesis touched on fundamentals, as was the case, for example, with the writers on the succession question. Other people, who were concerned with minor episodes in the dispute, as, for example, the functions of jurymen or the position of the nonconformists, might well not concern themselves at all with the argument from ‘reason’ as described below. Even so, however, they could often not escape from assumptions which were based on it, and which implied familiarity with it.

13 An attempt was sometimes made to prove that the contract had taken place as a matter of historical fact. But it was more usual to admit, as did the author of the Plato Redivivus, that: ‘it remains undiscovered yet how the first regulation of mankind began: and therefore I will take for granted that which all politicians conclude, which is that necessity made the first government’—necessity involving the contract.

14 Discourses, 3.

15 See infra, p. 53.

16 Cf. ‘An impartial account of the nature and tendency of the late addresses’ (1681)Google Scholar, State Tracts (1692), 11Google Scholar: ‘For if elections of members to serve in parliament be the best standard to judge the disposition of the Kingdom by…’; A Modest Account of the Present Posture of Affairs in England (1682), Trin[ity] Coll[ege] Libr[ary], Y. II. 29Google Scholar: ‘Hath your Lordship found out another way to make a distinction between the sense of the nation and that of a dangerous party, than that of the House of Commons?’

17 For the Tory opinion on this matter, see, particularly, Nalson, , The Common Interests of King and People (1678)Google Scholar.

18 Cf. Captain Thorogood, his Opinion of the Point of the Succession (1679)Google Scholar, Brit[ish] Mus[eum], 100* (115), where the writer, after enumerating all the various reasons against holding the Commons to be representative of the nation, concludes: ‘that the supposition… is a fiction of law, well devised by the wisdom of our ancestors for quieting and appeasing the minds of all particular men, who could not have a stronger motive of submission, or of not believing themselves injured, than their being accounted parties and privy to all Acts of Parliament.’ This thesis is maintained in a large number of Tory writings in the eighties.

19 Cf. particularly, ‘Some observations concerning the regulating of elections for parliament’, usually attributed to Shaftesbury, Somers Tracts, VIII.

20 It has been asserted (Gough, , The Social Contract, 21)Google Scholar that Sidney in his Discourses takes up a ‘definitely republican position’, but it is difficult to see how such a thesis can be maintained. Sidney consistently expressed a preference for a ‘mixed monarchy’ over any other type of government and though he would have allowed the king virtually no power, and held that he should be deposed if he broke the law, this was not republicanism 's Patriarcha which advocated absolutism, and there are other Tory works in the same category; but the bulk of Tory polemical writing clearly presupposes that the King is not in a position to override the law, except on certain specified occasions, such as a national emergency. The Tories deny that there is such a thing as a right of rebellion; on the other hand they maintain that the law of the constitution imposes limits on the royal power, and by implication, that the judges, whose duty it is to interpret the law, cannot enforce in the courts the King's decisions unless they are in accordance with the law. For an admirable illustration of this thesis see Sherringham, The King's Supremacy Asserted, 2nd ed. (1682)Google Scholar, Cambr[idge] Univ[ersity] Libr[ary]. The work was written in 1660, and a copy of the first edition is in the library of Caius College.

21 Admittedly the Tories accepted Filmer's Patriarcha which advocated absolutism, and there are other Tory works in the same category; but the bulk of Tory polemical writing clearly presupposes that the King is not in a position to override the law, except on certain specified occasions, such as a national emergency. The Tories deny that there is such a thing as a right of rebellion; on the other hand they maintain that the law of the constitution imposes limits on the royal power, and by implication, that the judges, whose duty it is to interpret the law, cannot enforce in the courts the King's decisions unless they are in accordance with the law. For an admirable illustration of this thesis see Sherringham, The King's Supremacy Asserted, 2nd ed. (1682), Cambr[idge[ Univ[ersity] Libr[ary]. The work was written in 1660, and a copy of the first edition is in the library of Caius College.

22 For the limitations which were held by lawyers to be placed on the power of the King in Parliament, and which the courts enforced, see Birdsall, , ‘Non obstante’, [Essays presented to McIlwain] (1936)Google Scholar, and Bellot, , Quart. Rev. (1926)Google Scholar.

23 Cf. particularly The History of Whiggism… (1682), Trin. Coll. Libr., Y. 11. 29Google Scholar: ‘Sovereign power cannot be invested in anything that is not omnipotent…. I know that prerogative is part of the law, but sovereign power is no parliamentary word: In my opinion it weakens Magna Charta and all our statutes: take we heed what we yield unto. Magna Charta is such a fellow that he will have no sovereign… all power and liberties and prerogatives are bounded and limited by the laws, and though they be as great as the sea, yet have their bounds, the law saying: hitherto shalt thou go and no further and here shall thy proud waters be stayed: no prerogative is infinite in England, nor any power omnipotent (except that of God alone). The law limits and binds us all from the greatest to the least… let us hold our privileges according to the law: that power that is above this, it is not fit for the king and people to have it disputed further.’

24 The sources under consideration, subject to the qualifications discussed below, give much more support to the view of McIlwain than they do to Holdsworth's refutation of it (History [ofEnglish Law], 3rd ed., 11,442). Admittedly, for the reasons which Holdsworth discusses, occasions when the legality of the decisions of the King in Parliament was liable to be questioned were unlikely to occur. But during the seventies and eighties, when first the court and then the Whig party attempted by means of propaganda, bribery and intimidation to force on the other side in parliament an unwilling compliance with its wishes, their occurrence seemed much more likely than in less abnormal times. Whether or not, therefore, there was a fundamental law of the constitution whose provisions could be invoked against the enactments of the King in Parliament became a question of immediate practical importance, and though this was a subject on which there was a great deal of divergence of opinion, the prevailing view was that such a law existed and that its existence was incompatible with an omnicompetent parliament (cf. Burnet, , History, 214)Google Scholar; see infra, p. 67.

Admittedly some Whigs attempted to explain the situation in the way in which it appears to Holdsworth—notably the author of ‘Fundamental laws and politic constitution of this realm’ (State Tracts (1692), II).Google Scholar This writer maintains the thesis that fundamental laws ‘are things of the Constitution, treating such a relation’ [i.e. the relation of the organs of the constitution to each other]. They are an expression of the law of nature and immutable and eternal. They are not, however, anywhere written down, except ‘in the very heart of the Republic’, and it appears that only parliament can say in what they consist. Thus it is argued that there are no limits to the power of parliament, which cannot be held to be tied by the Petition of Right or any other similar provisions, because ‘England in her polity is like Nature in her instincts, who i s wont to violate particular principles for public preservation’. This writer, it might be said, like every Whig, attempted to have the best of both worlds—the benefits at one and the same time of conservatism and revolution. But though in this respect his sentiments were the normal ones, the situation had become too urgent for it to be possible persistently to obscure it in this way.

25 ‘Lord Danby’, Burnet, said (History, 210)Google Scholar, ‘brought in some sad creatures.’ For a confirmation of this statement see Holdsworth, , History, vi, 503 ffGoogle Scholar.

26 Many complaints which had no basis in fact were brought against the judges by the Whigs in this period. The most legitimate ones concerned the discrimination which the judges showed between Whigs and Tories in their imposition of punishments and over the question of bail, and the highly improper tirades against Whiggery and nonconformity in which Scroggs indulged on the Bench (cf. Articles of impeachment against Scroggs, , Commons' Journals, 3 Jan. 1681Google Scholar; [Historical MSS. Commission], MSS. of the House of Lords [IIth Report, Appendix Part II], 212). Roger North's Examen affords an admirable illustration of the partisan attitude taken up by his brother Frank, Lord Chief Justice of the Common Pleas, who notwithstanding his inability to separate law and politics was an able lawyer (cf. Holdsworth, , History, vi, 531)Google Scholar and certainly had a high conception of the dignity of his profession.

27 An interesting illustration of this is provided by a number of Whig tracts written in defence of the ‘ignoramus’ juries (The Englishman's Right… (1680), Trin. Coll. Libr., vi. II. 86Google Scholar; The Grandjuryman's Oath and Office explained… (1680), Trin. Coll. Libr., K. 13. 104Google Scholar; The Security of Englishmen's Lives… (1682), Trin. Coll. Libr., Y. 7. 22Google Scholar; The Power and Privileges of Juries Asserted (1681)Google Scholar, Bodl. Libr., Godwyn Pamphlets 1364 (8); Ignoramus vindicated… (1681)Google Scholar, Bodl. Libr., Godwyn Pamphlets 1126 (8)). The thesis in these writings was that it was the function of the jury to be a judge of law as well as of fact, because no valid opinion on the former subject was to be expected from the Bench.

28 Cf. Halifax, , Character of a TrimmerGoogle Scholar, where he says: ‘Our Trimmer thinketh that the King and Kingdom are to be one creature, not to be separated in their political capacity; and when either of them undertake to act apart, it is like the crawling of worms after they are cut in pieces, which cannot be a lasting motion, the whole creature not stirring at a time.’ The same idea, as it could be used by the Whigs for polemical purposes, can be seen very well in A Speech lately Made by a Noble Peer. (Printed in Cobbett, , Parl. Hist. IV, cxi–cxiv.)Google Scholar

29 Speech of Sir Ward, Patience, September 1680, Somers Tracts, VIII, 140 ff.Google Scholar Speech of Sir Robert Clayton, September 1679, Bodl. Libr., Bartholomew Pamphlets, B. 143 (48).

30 Speech of the Hon. Booth, Henry, State Tracts (1692), 11, 147 ffGoogle Scholar.

31 Cf. The Protestant (Domestic Intelligence, no. m, 5 April 1681)Google Scholar, in which this accusation is referred to as an invention of ‘our popish adversaries, [who] will never want a lie to support their rotten cause’.

32 An Address to the Freemen and Freeholders of the Nation (1682)Google Scholar, Bodl. Libr., Godwyn Pamphlets, 1126 (14).

33 Holdsworth, , History, IX, 5Google Scholar.

34 Sherringham, , The King's Supremacy Asserted, p. 29Google Scholar.

35 The classic illustration of this is provided by Danby's case. Cf. Grey, Anchitel, Parl[iamentary] Deb[ates], vol. vi, debate of 21 Dec. 1679Google Scholar; also An Examination of the Impartial Case of the Earl of Danby (1680), Brit. Mus., 94* (9).Google Scholar There are many other similar instances. Cf. particularly Grey, , Part. Deb., vi, 22Google Scholar, where Vaughan is reported as saying: ‘As long as persons can sully their King's robes with their own stains, they think all well enough. The king can do no wrong and I would have the blame laid where it ought to be. The Parliament starts not miscarriages on the King, to reflect them there, but on his ministers, where they ought to be.’

36 Cf. Ehrlich, , Proceedings Against the Crown (Oxford Social and Legal Studies, vi), 127Google Scholar.

37 Cf. Holdsworth, , History, VI, 101Google Scholar.

38 In the case of Stafford, who was condemned to death in 1680 for his supposed participation in the plot revealed by Oates. It is significant that none of the disputes between the two Houses which occurred over Danby's impeachment arose on this occasion; and the reason clearly was that Stafford's case was not a party issue. No one wished to create any difficulties on behalf of a Catholic, for the Catholics were impotent to defend themselves and were a useful scapegoat for both sides.

39 Commons' Journals, 13 and 14 January 1674Google Scholar.

40 See Commons' Journals, 17 November 1680Google Scholar and 7 January 1681. On 17 November the Commons passed a resolution that Charles should be asked to dismiss Halifax from his presence and counsels for ever. On 7 January similar resolutions were passed against Lawrence Hyde, Worcester, Feversham and Edward Seymour, whom the King was also requested to deprive of all the offices they held under the Crown.

41 Cf. George, Mrs, ‘Elections and Electioneering 1679–1681’, E[nglish] H[istarical] R[eview] (1930)Google Scholar.

42 Ailesbury, in his Memoirs (printed for the Roxburghe Club, 1890), 48, has an illuminating story in this connexion. In a debate on the second Exclusion Bill, the Noes, he says, were very weak and the Speaker declared for the Ayes. ‘We were not a dozen that durst cry out, and as a young, inexperienced member, out of zeal I insisted that the House should divide…but by Sir William Temple's entreaty I desisted.’ Ailesbury estimated that the anti-exclusionists numbered about 100, and that is very likely approximately correct. In the division on the second reading of the first Exclusion Bill (the only occasion in the Commons when a division was taken) they had been 128 to 207. No doubt the fear which the Tories felt of publicly expressing their opinions was due to the habit, adopted during the Exclusion Parliaments, of printing the debates, so that the public could distinguish the sheep from the goats, and of circulating black lists of ‘papists in masquerade’, who were held up to public execration. A particularly good example of one of these lists is attached to the Advice to a Courteous Reader printed in the Cal[endar of] St[ate] Pap[ers] Dom[estic]. The editors have dated it between 10 and 18 January 1681, but this is clearly a mistake. It must have been issued in the autumn of 1679.

43 Grey, , Parl. Deb., III, 24.Google Scholar Sir Thomas Lee, another member of the Country party, denied that an address of this sort even constituted an accusation. It was, he said, ‘a pure petition that the King would deliver you from your fears’.

44 Resolution of 7 January 1681.

45 Sir Capel, Henry. Grey, , Part. Deb., VIII, 264Google Scholar.

46 Printed in Cobbett, , Parl. Hist., CXXXIV ffGoogle Scholar.

47 It is interesting that the Whigs in the last Exclusion Parliament attempted to give additional weight to this contention by asserting that they were commanded by their constituents (in the addresses to M.P.'s referred to above, p. 45) to press for the Exclusion. Cf. the remark of Sir William Pulteney in the debate of 26 March 1681: ‘I am afraid that unless we be true to those we serve we shall deserve a just reproach; and by express directions of those I represent I am enjoined to adhere to the Bill of Exclusion.’ Cf. also Henry Booth in the same sense (Grey, , Parl. Deb., VIII, 316 and 326).Google Scholar The idea that an M.P. was a delegate and not a representative was explicitly defended by Sidney (Discourses, 410), but it was strongly repudiated by the Tories and Trimmers. Cf. particularly the speech of Littleton, the most impressive Trimmer speaker in the House, in the debate referred to: ‘I would not’, he says, ‘have that way cherished here …it is a most unusual thing here and of dangerous consequence.’ The Whigs were not prepared to press the point. Wilmington, replying to Littleton, showed no desire to take up Sidney's uncompromising position. After the fashion of most Whigs, he clearly wished to avoid committing himself openly to revolutionary conclusions, such as Pulteney's and Booth's assertions, and the movement which produced the addresses, obviously led to.

48 It is significant that in his Declaration of 8 April 1681 (printed in Bryant, , Letters of King Charles II, 319)Google Scholar, Charles stigmatized these addresses as illegal, presumably because no other convincing enough objection to them could be thought of. The Tories took their cue from the Declaration, but Charles's assertion was certainly untrue. The addresses were not illegal and not even without precedent. The real constitutional objection to them was, however, too complicated to be presented in a manifesto for popular consumption, and it is in any case doubtful how far the Tories were clearly aware of it.

49 His Majesty's Declaration Defended (1681)Google Scholar, Cambr. Univ. Libr.

50 Equally, of course, it was necessary for them to eliminate the possibility of the king's exercising his veto. As Charles, however, only vetoed one bill of major importance in the course of his reign, this was not a subject which was usually discussed. Notwithstanding, the author of a pamphlet considered important enough to be included in the State Tracts—‘Of fundamental laws’—managed, by the kind of reasoning usually employed, to deny, in effect, that the king had this power. See supra, n. 24.

51 Cf. Christie, , Life of Shaftesbury (1871), 11, 230Google Scholar.

52 III.

53 Cf. The Just and Modest Vindication in which almost the same words are used: ‘The constitution had been equally imperfect and destructive of itself had it been left to the will and choice of the Prince whether he would ever summon a parliament or put into his power to dismiss them arbitrarily at his pleasure.’ Also Dialogue at Oxford between a Tutor and a Gentleman formerly his Pupil (1681), Trin. Coll. Libr., Y. 9. 26Google Scholar: ‘These are wise and learned men (and who upon a good occasion may be spoke with) that do conceive there is a statute made in the time of Richard II and now in being, though not in print, which provides that no parliament shall be dismissed till all petitions are answered.’ Like the author of the Plato Redivivus, this writer also asserts that if there is no such statute then the matter must be referred to ‘a fixed and standing rule which (in matters of government where positive laws are silent) can be no other than the fundamental architecture and original frame of the Constitution’.

54 Cf. MSS. of the House of Lords, 172 ff. and Cal. St. Pap. Dom., passim, in which there is a great deal of information about the government's campaign against the Whigs between October 1679 and November 1680.

55 Notably the Protestant Association Bill was designed to have this effect. See MSS. of the House of Lords, 210.

56 See Commons' Journals, 17 December 1680Google Scholar.

57 Cf. Grey, , Parl. Deb., VIIIGoogle Scholar, Debate of 5 January 1681.

58 Grey, , Parl. Deb., VIII, 237Google Scholar.

59 Finch, Daniel. Grey, Parl. Deb., VIII, 242 and 250Google Scholar.

60 Holdsworth, , History, 1, 378Google Scholar.

61 Grey, , Parl. Deb., VIII, 239Google Scholar.

62 In the autumn of 1675 Shaftesbury brought an action for slander against Lord Digby who had accused him of being ‘against the King and for seditious factions’. He won it and was awarded £1000 damages. Cf. also Hist. MSS. Comm., Ormonde MSS., New Series, v, 95, A — B— to Ormonde, 13 Ma y 1679: ‘In the debate (on the Exclusion Bill) Sir William Coventry very dexterously interposed: “Before any man can speak clearly it is necessary to know whether you intend after the decease of the King… to drive the Government to a Commonwealth or merely to change the line?” The cry was universal: “No Commonwealth, no Commonwealth, we abhor the thought of it.”’

63 The Whigs maintained that whereas Danby's creatures had won their seats by bribery spent on making the electors drunk, in Whig constituencies it was the electorate which treated the candidates. This assertion was regularly made in the Whig newspapers, notably in the Domestic Intelligence. As far as I am aware, the Tories, curiously enough, never attempted to refute it, though they brought a large number of damaging indictments against the Whigs' electioneering methods.

64 Some of the people who were imprisoned by order either of the House of Lords or of the House of Commons attempted to sue out Habeas Corpuses but were refused them (MSS. of the House of Lords, 270–1), according to Burnet, because the Judges were too much ‘afraid of the House’ to grant them (History, 264). An exception occurred in the case of Sheridan, ‘a bold, forward man… a native from Ireland’, who was imprisoned by the Commons for breach of privilege but who was granted a Habeas Corpus by Baron Weston (Burnet, , History).Google Scholar This occasioned several debates in the Commons where the Whig lawyers, after some shilly-shallying, unanimously came to the conclusion that the Habeas Corpus Act did not apply to people committed by either House (Grey, , Parl. Deb., VIII, 220–2 and 229–31)Google Scholar, a verdict subsequently endorsed by the Lords during the Oxford Parliament in the case of Lacey, Colonel Piers (Lords' Journals, XIII, 270)Google Scholar.

65 Works, 11, 508, quoted. Turner, , ‘The Privy Council of 1679’, E.H.R. (1915), 263, n. 78Google Scholar.

66 ‘A dialogue about the parliament of England’ (1687)Google Scholar, printed in the Petty Papers, ed. the Lansdowne, Marquis of (1927), 1Google Scholar.

67 Discourses, 82.

68 Discourses, 332.

69 Cf. ‘A word without doors concerning the Bill for the Succession’, State Tracts (1692), 11Google Scholar: ‘The same human authority (residing in King, Lords and Commons…) which gave being to those laws for the good of the Community is superintendent above them, and both may and ought to make any addition to or alteration of them, when the public good or welfare of the Nation shall require it.’ A Brief History of the Succession, Trin. Coll. Libr., Y. 11. 27: ‘There must be a supreme, uncontrollable power lodged somewhere. And the men who talk at this rate, can hardly find where it is lodged in England, if not in King, Lords and Commons.’ A Letter to a Friend in the Country, being a Vindication of the Parliaments proceedings in this last Session, Bodl. Libr., Bartholomew Pamphlets, 13149 (41): ‘That it is contrary to the law of Nature or Reason to suppose that the King and Parliament together cannot alter the succession is evident, since the heir apparent may sometimes happen to be a fool, a madman, a Turk or a heretic, or one deprived of his senses, from whom nothing but public ruin could be expected should the government be put into his hands.’ The same thesis is also maintained in The Case of Succession to the Crown of England stated, Trin. Coll. Libr., K. 15. 49.

70 History, 214.

71 Cf. Grey, , Parl. Deb., VIIIGoogle Scholar, debate of 26 March 1681. Sir William Jones, arguing against the regency scheme suggested by the government: ‘If you take away the descent of the Crown upon the Duke, and the Duke has a title to be King, then without doubt all capacities fail… if this can be made effectual I am as willing to exclude the Duke's power as name, but lawyers will tell you it cannot be done.’ Cf. also Sir Francis Wilmington in the same sense, p. 325. No doubt the lawyers in the Commons spoke in the capacity of advocates, and would not necessarily have upheld the same opinions n i a case over which they had had to preside from the Bench, but in this instance it seems that their interpretation of the situation was correct (cf. Birdsall, , Non obstante)Google Scholar.

72 An extremely illuminating picture of the Whigs' attitude towards rebellion is provided by the confession of Lord Grey of Warke (The Secret History of the Rye House Plot and Monmouth's Rebellion (1754)Google Scholar, Cambr. Univ. Libr.), which he wrote after Monmouth's defeat, and by the MS. of Robert Ferguso n (printed in Robert Ferguson the Plotter, by Ferguson, James, 1887).Google Scholar Neither of these two writers is much value as evidence when his statements are unsupported by other sources, but to a large extent in their accounts of the events of 1681–3 they bear each other out. They show very clearly the extreme disinclination of the bulk of the Whig gentry to fight. Lord Gre y gives a particularly significant account of what happened at the end of the Oxford Parliament, which, though it is not confirmed by any other writer, is likely to be true because, apart from its plausibility, no purpose could have been served by its invention. He says tha t under the leadership of Shaftesbury, he, Monmouth, Essex and various others, including ‘very many members’ in the Commons, decide d that they woul d refuse to go home if Charles were to dissolve the parliament before Fitzharris had been impeached. The next morning, however, ‘the dissolution surprised us all’, but ‘persuant to our resolution we got several Lords to stay in the House’, and sent ‘several messengers… to our friends in the House of Commons to let them know we… expected performance of their words; bu t most of them could not be found, and those that were answered us only with shaking their heads, and soon after we heard the Commons' House was empty, and so we went away’.

73 Cf. particularly a letter printed in the Cal. St. Pap. Dom., 28 November 1680, and written by an anonymous correspondent to an M.P., probably John Speke, one of the most active of the Somersetshire Whigs. The writer refers to the hostility created in Whig circles in his county by the addresses against Halifax, the refusal to provide money for Tangier and various other of the Whig decisions. In the margin is written in another hand: ‘To press no further on the King than you can be sure he will bear, always considering that if you should be dissolved, Popery will recover and this great monarchy will be in danger of utter ruin.’ The same point of view is expressed in several Whig pamphlets, notably in Reasons for His Majesty's Passing the Bill of Exclusion, Trin. Coll. Libr., Y. 11. 1.

74 Barillon wrote categorically on 10 October 1678 that ‘Les gens opposés à la Cour se moquent de toute cette [i.e. Oates's] accusation’ (O, P. R.., Baschet Transcripts)Google Scholar.

75 E.g. the Secretary of State, Sir Henry Coventry. On 1 October 1678, he wrote to Ormonde in some uncertainty (Comm, Hist. MSS.., Ormonde MSS., iv, 207)Google Scholar: ‘It is a stupendous thing’, he said, ‘to think what vast concerns are like to depend on the evidence of one young man who hath twice changed his religion—if he be now a protestant.’ But by 14 January 1679 his doubts had vanished. Writing again to Ormonde he asserted that ‘I must confess I am entirely convinced there was a most desperate design’. The letters of Sir Robert Southwell, Clerk to the Privy Council, also printed in vol. iv of the Ormonde MSS., tell much the same sort of story, as, equally, does Roger North's description of the state of mind of his brother Dudley, (Lives of the Norths, 11, 179)Google Scholar.

76 Speech and Behaviour of William, late Lord Russell, together with the Paper delivered by him to the Sheriffs, 1683, Cambr. Univ. Libr. (Acton, f. 25. 393)Google Scholar.

77 For other Trimmer writings besides the Character of a Trimmer see particularly Anglesey, , ‘State of Government and Kingdom’, Somers Tracts, VIIIGoogle Scholar, and A few Words among many about the touchy Points of the Succession, Bodl. Libr., Godwyn Pamphlets 1125 (22).