Thomas Babington Macaulay - The History of England from the Accession of James II (Vol. 1-5)

Albemarle, therefore, though he had a great superiority of force, thought it advisable to retreat. The retreat soon became a rout. The whole country was strewn with the arms and uniforms which the fugitives had thrown away; and, had Monmouth urged the pursuit with vigour, he would probably have taken Exeter without a blow. But he was satisfied with the advantage which he had gained, and thought it desirable that his recruits should be better trained before they were employed in any hazardous service. He therefore marched towards Taunton, where he arrived on the eighteenth of June, exactly a week after his landing. 368

The Court and the Parliament had been greatly moved by the news from the West. At five in the morning of Saturday the thirteenth of June, the King had received the letter which the Mayor of Lyme had despatched from Honiton. The Privy Council was instantly called together. Orders were given that the strength of every company of infantry and of every troop of cavalry should be increased. Commissions were issued for the levying of new regiments. Alford's communication was laid before the Lords; and its substance was communicated to the Commons by a message. The Commons examined the couriers who had arrived from the West, and instantly ordered a bill to be brought in for attainting Monmouth of high treason. Addresses were voted assuring the King that both his peers and his people were determined to stand by him with life and fortune against all his enemies. At the next meeting of the Houses they ordered the Declaration of the rebels to be burned by the hangman, and passed the bill of attainder through all its stages. That bill received the royal assent on the same day; and a reward of five thousand pounds was promised for the apprehension of Monmouth. 369

The fact that Monmouth was in arms against the government was so notorious that the bill of attainder became a law with only a faint show of opposition from one or two peers, and has seldom been severely censured even by Whig historians. Yet, when we consider how important it is that legislative and judicial functions should be kept distinct, how important it is that common fame, however strong and general, should not be received as a legal proof of guilt, how important it is to maintain the rule that no man shall be condemned to death without an opportunity of defending himself, and how easily and speedily breaches in great principles, when once made, are widened, we shall probably be disposed to think that the course taken by the Parliament was open to some objection. Neither House had before it anything which even so corrupt a judge as Jeffreys could have directed a jury to consider as proof of Monmouth's crime. The messengers examined by the Commons were not on oath, and might therefore have related mere fictions without incurring the penalties of perjury. The Lords, who might have administered an oath, appeared not to have examined any witness, and to have had no evidence before them except the letter of the Mayor of Lyme, which, in the eye of the law, was no evidence at all. Extreme danger, it is true, justifies extreme remedies. But the Act of Attainder was a remedy which could not operate till all danger was over, and which would become superfluous at the very moment at which it ceased to be null. While Monmouth was in arms it was impossible to execute him. If he should be vanquished and taken, there would be no hazard and no difficulty in trying him. It was afterwards remembered as a curious circumstance that, among zealous Tories who went up with the bill from the House of Commons to the bar of the Lords, was Sir John Fenwick, member for Northumberland. This gentleman, a few years later, had occasion to reconsider the whole subject, and then came to the conclusion that acts of attainder are altogether unjustifiable. 370

The Parliament gave other proofs of loyalty in this hour of peril. The Commons authorised the King to raise an extraordinary sum of four hundred thousand pounds for his present necessities, and that he might have no difficulty in finding the money, proceeded to devise new imposts. The scheme of taxing houses lately built in the capital was revived and strenuously supported by the country gentlemen. It was resolved not only that such houses should be taxed, but that a bill should be brought in prohibiting the laying of any new foundations within the bills of mortality. The resolution, however, was not carried into effect. Powerful men who had land in the suburbs and who hoped to see new streets and squares rise on their estates, exerted all their influence against the project. It was found that to adjust the details would be a work of time; and the King's wants were so pressing that he thought it necessary to quicken the movements of the House by a gentle exhortation to speed. The plan of taxing buildings was therefore relinquished; and new duties were imposed for a term of five years on foreign silks, linens, and spirits. 371

The Tories of the Lower House proceeded to introduce what they called a bill for the preservation of the King's person and government. They proposed that it should be high treason to say that Monmouth was legitimate, to utter any words tending to bring the person or government of the sovereign into hatred or contempt, or to make any motion in Parliament for changing the order of succession. Some of these provisions excited general disgust and alarm. The Whigs, few and weak as they were, attempted to rally, and found themselves reinforced by a considerable number of moderate and sensible Cavaliers. Words, it was said, may easily be misunderstood by a dull man. They may be easily misconstrued by a knave. What was spoken metaphorically may be apprehended literally. What was spoken ludicrously may be apprehended seriously. A particle, a tense, a mood, an emphasis, may make the whole difference between guilt and innocence. The Saviour of mankind himself, in whose blameless life malice could find no acts to impeach, had been called in question for words spoken. False witnesses had suppressed a syllable which would have made it clear that those words were figurative, and had thus furnished the Sanhedrim with a pretext under which the foulest of all judicial murders had been perpetrated. With such an example on record, who could affirm that, if mere talk were made a substantive treason, the most loyal subject would be safe? These arguments produced so great an effect that in the committee amendments were introduced which greatly mitigated the severity of the bill. But the clause which made it high treason in a member of Parliament to propose the exclusion of a prince of the blood seems to have raised no debate, and was retained. That clause was indeed altogether unimportant, except as a proof of the ignorance and inexperience of the hotheaded Royalists who thronged the House of Commons. Had they learned the first rudiments of legislation, they would have known that the enactment to which they attached so much value would be superfluous while the Parliament was disposed to maintain the order of succession, and would be repealed as soon as there was a Parliament bent on changing the order of succession. 372

The bill, as amended, was passed and carried up to the Lords, but did not become law. The King had obtained from the Parliament all the pecuniary assistance that he could expect; and he conceived that, while rebellion was actually raging, the loyal nobility and gentry would be of more use in their counties than at Westminster. He therefore hurried their deliberations to a close, and, on the second of July, dismissed them. On the same day the royal assent was given to a law reviving that censorship of the press which had terminated in 1679. This object was affected by a few words at the end of a miscellaneous statute which continued several expiring acts. The courtiers did not think that they had gained a triumph. The Whigs did not utter a murmur. Neither in the Lords nor in the Commons was there any division, or even, as far as can now be learned, any debate on a question which would, in our age, convulse the whole frame of society. In truth, the change was slight and almost imperceptible; for, since the detection of the Rye House plot, the liberty of unlicensed printing had existed only in name. During many months scarcely one Whig pamphlet had been published except by stealth; and by stealth such pamphlets might be published still. 373