Articles were next sent up against the lord Somers. In these, the two Partition Treaties were copiously set forth, and it was laid down for a foundation, that the king was bound to maintain the emperor's right of succession to the crown of Spain. Lord Somers was charged for setting the seals, first to the powers, and then to the treaties themselves: he was also charged for accepting some grants; and the manner of taking them was represented as fraudulent, he seeming to buy them of the king, and then getting himself discharged of the price contracted for. Kid's business was also mentioned, and dilatory and partial proceedings in chancery were objected to him. He put in his answer in a very few days: in the Partition Treaty, he said, he had offered the king very faithful advice as a councillor, and had acted according to the duty of his post as chancellor; so he had nothing more to answer for: as for his grants, the king designed him a grant to such a value; the king was not deceived in the value; the manner of passing it was according to the usual methods of the treasury, in order to make a grant sure, and out of the danger of being avoided. Kid's business was opened as was formerly set forth; and, as to the court of chancery, he had applied himself wholly to the dispatch of business in it, with little regard to his own health or quiet, and had acted according to the best of his judgment, without fear or favour. This was presently sent down to the house of commons, and upon that they were at a full stand they framed no articles against the earl of Portland, which was represented to the king as an expression of their respect to him.

Some time after this, near the end of the session, they sent up articles against the lord Halifax, which I mention here that I may end this matter all at once. They charged him for a grant that he had in Ireland, and that he had not paid in the produce of it, as the act concerning those grants had enacted: they charged him for another grant, out of the forest of Dean, to the waste of the timber and prejudice of the navy of England: they charged him for holding places that were incompatible, being at the same time both a commissioner of the treasury and auditor of the exchequer : and, in conclusion, he was charged for advising the two Partition Treaties. He was as quick with his answer as the other lords had been. He said, his grant in Ireland was of some debts and sums of money, and so was not thought to be within the act concerning confiscated estates. All he had ever received of it was 4007. If he was bound to repay it, he was liable to an action for it; but every man was not to be impeached who did not pay his debts at the day of payment. His grant in the forest of Dean was only of the weedings; so it could be no waste of timber, nor a prejudice to the navy: the auditor's place was held by another, till he obtained the king's leave to withdraw from the treasury: as for the first Partition Treaty, he never once saw it, nor was he ever advised with in it as for the second, he gave his advice very freely about it, at the single time in which he had ever heard any thing concerning it. This was sent down to the commons, but was never so much as once read by them. When, by these articles, and the answers to them, it appeared, that after all the noise and clamour that had been raised against the former ministry (more particularly against the lord Halifax) for the great waste of treasure during their administration, that now, upon the strictest search, all ended in such poor accusations; it turned the minds of many that had been formerly prejudiced against them. It appeared that it was the animosity of a party at best, if it was not a French practice, to ruin men who had served the king faithfully, and to discourage others from engaging themselves so far in his interests as these lords had done. They saw the effect that must follow on this; and that the king could not enter upon a new war, if they could discourage from his service all the men of lively and active tempers, that would raise a spirit in the nation for supporting such an important and dangerous war, as this now in prospect was likely to prove.

This gave a general disgust to all England, more particularly to the city of London, where foreign affairs and the interest of trade were generally better understood. The old East India company, though they hated the ministry that set up the new, and studied to support this house of commons, from whom they expected much favour; yet they, as well as the rest of the city, saw visibly that first the ruin of trade, and then, as a consequence of that, the ruin of the nation must certainly ensue, if France and Spain were once firmly united: so they began openly to condemn the proceedings of the commons, and to own a

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jealousy, that the louis-d'or sent hither of late had not come over to England for nothing. This disposition to blame the slowness in which the house of commons proceeded with relation to foreign affairs, and the heat with which private quarrels were pursued, began to spread itself through the whole nation. Those of the county of Kent sent up a petition to the house, desiring them to mind the public more and their private heats less, and to turn their addresses to the king to bills of supplies, to enable him both to protect the nation and to defend our allies. This was brought up by some persons of quality, and was presented by them to the house but it was looked on as a libel on their proceedings; and the gentlemen who brought it up were sent to prison, where they lay till the prorogation; but they were much visited, and treated as confessors*. This was highly censured: it was said the commons were the creatures of the people, and upon all other occasions they used to favour and encourage petitions: this severity was condemned therefore as unnatural, and without a precedent: it was much questioned, whether they had really an authority to imprison any except their own members, or such as had violated the privilege of their house: but the party thought it was convenient, by such an unusual severity, to discourage others from following the example set them by those of Kent; for a design was laid to get addresses of the same nature from all parts of the kingdom, chiefly from the city of London. The ministers represented to the king what an indignity this would be to the house of commons; and that, if he did not discourage it, he might look for unacceptable things from them. It might rather discourage than give heart to our allies, if they should see such a disjointing, and both city and country in an opposition to the house of commons. Some went, in his name, to the eminent men of the city to divert it, yet with all this it came so near for such an address in a common council, that the lord mayor's vote turned it for the negative, so that fell. But a disposition to a war, and to a more hearty concurrence with the king, appeared to be the general sense of the nation, and this had a great effect on the house of commons: they began to talk of a war as unavoidable; and when the session drew near an end, they, by an address, desired the king to enter into such alliances with the emperor, and other states and princes, as were necessary for the support of us and our allies, and to bring down the exorbitant power of France. This was opposed with great zeal by those who were looked on as the chief conductors of the jacobite party, though many, who had in other things gone along with them, thought this was the only means that were left to recover their credit with the people; for the current ran so strong for a war, that those who struggled against it, were looked on as little better than public enemies. They had found good funds for a million and a half. It is true one of these was very unacceptable to the king: it was observed that the allotment for the civil list did far exceed the sum that was designed, which was only 600,000l., and that as king James's queen would not take her jointure, so, by the duke of Gloucester's death, the charge on it was now less than when it was granted so they took almost 40007. a-week out of the excise, and, upon an assignation made of that for some years, a great sum was raised. This was very sensible to the court, and the new ministers found it no easy thing to maintain, at the same time, their interest both with the king and their party this matter was at last yielded to by the king. All the remainder of this session relates to the impeachments.

The lords had resolved to begin with the trial of the earl of Orford, because the articles against him were the first that were brought up; and since the commons made no replication, the lords, according to clear precedents, named a day for his trial, and gave notice of it to the house of commons. Upon this, the commons moved the lords to agree to name a committee of both houses for settling the preliminaries of the trial, and they named two preliminaries: one was, that the lord who was to be tried should not sit as a peer; the other was, that those lords who were impeached for the same matter, might not vote in the trial of one another: they also acquainted the lords that the course of their evidence led them to begin with the lord Somers. The lords judged their last demand reasonable, and

*The imprisoned "Kentish Petitioners" were Justinian Champneys, of Westhanger; sir Thomas Culpepper, knight, of Preston Hall, Aylesford; William Culpepper, esq., of Hollingborne; James Hamilton, esq., of Chilston;

and David Polhill, esq., of Cheapsted; all in the county of Kent. See Hist. of the Kentish Petition, published in 1701; Noble's Continuation of Grainger.

agreed to it, but disagreed to the others. They considered themselves as a court of justice, and how great soever the regard due to the house of commons might be in all other respects, yet in matters of justice, where they were the accusers, they could only be considered as parties. The king, when he had a suit with a subject, submitted to the equality of justice; so the commons ought to pretend to no advantage over a single person in a trial: a court of justice ought to hear the demands of both parties pleaded fairly, and then to judge impartially a committee named by one of the parties, to sit in an equality with the judges, and to settle matters relating to the trial, was a thing practised in no court or nation, and seemed contrary to the principles of law, or rules of justice: by these means they could at least delay trials as long as they pleased, and all delays of justice are real and great injustices. This had never been demanded but once, in the case of the popish plot; then it was often refused: it is true it was at last yielded to by the lords, though with great opposition; that was a case of treason, in which the king's life and the safety of the nation were concerned; there was then a great jealousy of the court, and of the lords that belonged to it; and the nation was in so great a ferment, that the lords might at that time yield to such a motion, though it derogated from their judicature: that ought not to be set up for a precedent for a quiet time, and in a case pretended to be no more than a misdemeanor: so the lords resolved not to admit of this, but to hear whatsoever should be proposed by the commons, and to give them all just and reasonable satisfaction in it. The chief point in question, in the year 1679, was, how far the bishops might sit and vote in trials of treason; but without all dispute, they were to vote in trials for misdemeanors. It was also settled in the case of the lord Mordaunt, that a lord tried for a misdemeanor was to sit within the bar. In all other courts men tried for such offences came within the bar. This was stronger in the case of a peer, who, by his patent, had a seat in that house, from which nothing but a judgment of the house for some offence could remove him: they indeed found that, in king James the First's time, the earl of Middlesex, being accused of misdemeanors, was brought to the bar; but as that prosecution was violent, so there had been no later precedent of that kind to govern proceedings by it: there had been many since that time, and it had been settled, as a rule for future times, that peers tried for such offences were to sit within the bar. The other preliminary was, that peers, accused for the same offence, might not vote in the trials of the others: the lords found that a right of voting was so inherent in every peer in all causes, except where himself was a party, that it could not be taken from him but by a sentence of the house; a vote of the house could not deprive him of it: otherwise, a majority might upon any pretence deny some peers their right of voting, and the commons, by impeaching many peers at once for the same offence, might exclude as many lords as they pleased from judging: it was also observed that a man might be a judge in any cause in which he might be a witness: and it was a common practice to bring persons charged with the same offence, if they were not in the same indictment, to witness the facts with which they themselves were charged in another indictment; and a parity of reason appeared in the case of lords, who were charged in different impeachments, for the same facts, that they might be judges in one another's trials. Upon these points many messages passed between the two houses with so much precipitation, that it was not easy to distinguish between the answers and the replies: the commons still kept off the trial by affected delays. It was visible, that when a trial should come on, they had nothing to charge these lords with: so the leaders of the party showed their skill in finding out excuses to keep up the clamour, and to hinder the matters from being brought to an issue: the main point that was still insisted on was a committee of both houses; so, according to the forms of the house, it was brought to a free conference.

In it the lord Haversham, speaking to the point of lords being partial in their own cases, and therefore not proper judges, said that the house of commons had plainly showed their partiality in impeaching some lords for facts in which others were equally concerned with them, who yet were not impeached by them, though they were still in credit and about the king; which showed that they thought neither the one nor the other were guilty*. The house of commons by his daring speeches. He voted for the exclusion bill, and in favour of the revolution. In

Sir John Thompson, bart. was created baron of Haversham in 1696. He distinguished himself in the

commons thought that they had now found an occasion of quarrelling with the lords, which they were looking for: so they immediately withdrew from the conference, though they were told that the lord Haversham spoke only his own private sense, and not by any direction from the house. The house of commons sent up a complaint to the lords of this reflection on their proceedings, as an indignity done them, for which they expected reparation : upon this the lord Haversham offered himself to a trial, and submitted to any censure that the lords should think he had deserved; but insisted that the words must first be proved, and he must be allowed to put his own sense on them: the lords sent this to the commons, but they seemed to think that the lords ought to have proceeded to censure him in a summary way, which the lords thought, being a court of judicature, they could not do till the words were proved, and the importance of them discussed.

The house of commons had now got a pretence to justify their not going further in these trials, and they resolved to insist upon it: they said they could expect no justice, and therefore they could not go on with the prosecutions of their impeachments: and a day being set for the lord Somers's trial, they excepting still, it was put off for some time; at last a peremptory day was fixed for it; but the commons refused to appear, and said they were the only judges, when they were ready with their evidence, and that it was a mockery to go to a trial when they were not ready to appear at it. There were great and long debates upon this in the house of lords: the new ministry and all the jacobites joined to support the pretensions of the commons: every step was to be made by a vote, against which many lords protested; and the reasons given, in some of their protestations, were thought to be so injurious to the house, that they were by a vote ordered to be expunged; a thing that seldom happens. When the day set for the trial came, the other lords, who were also impeached, asked the leave of the house to withdraw, and not to sit and vote in it: this was granted them, though it was much opposed and protested against by the tory party, because the giving such leave supposed that they had a right to vote. The lords went down in form to Westminster Hall, where the articles against the lord Somers were first read; lord Somers's answers were next read; and none appearing to make good the charge, the lords came back to their house, where they had a long and warm debate of many hours, concerning the question that was to be put; the judges told them that, according to the forms of law, it ought to be guilty, or not guilty: but those of the party said, as it was certain that none could vote him guilty, so, since the house of commons had not come to make good the charge, they could not vote him not guilty: so, to give them some content, the question agreed on to be put was, whether he ought to be acquitted of the impeachment, or not? That being settled, the lords went again to the Hall, and, the question being put, fifty-six voted in the affirmative, and thirty-one in the negative. Upon this, the house of commons passed some high votes against the lords, as having denied them justice, and having obstructed the public proceedings; and called the trial a pretended trial. The lords went as high in their votes against the commons; and each house ordered a narrative of the proceedings to be published for satisfying the nation. A few days after this the earl of Orford's trial came on, but, all the lords of the other side withdrawing, there was no dispute; so he was acquitted by an unanimous vote. The lords did also acquit both the earl of Portland and the lord Halifax; and because the commons had never insisted on their prosecution of the duke of Leeds, which they had begun some years before, they likewise acquitted him, and so this contentious session came to an end. The two houses had gone so far in their votes against one another, that it was believed they would never meet again: the proceedings of the lords had the general approbation of the nation on their side: most of the bishops adhered to the impeached lords, and their behaviour on this occasion was much commended. I bore some share in those debates, perhaps more than became me, considering my station, and other circumstances: but as I was convinced of the innocence of the lords,

so I thought the government itself was struck at; and therefore, when I apprehended all was in danger, I was willing to venture every thing in such a quarrel. The violence, as well as the folly, of the party, lost them much ground with all indifferent men; but with none more than with the king himself, who found his error in changing his ministry at so critical a time; and he now saw that the tories were at heart irreconcilable to him; in particular, he was extremely uneasy with the earl of Rochester, of whose imperious and intractable temper he complained much, and seemed resolved to disengage himself quickly from him, and never to return to him any more. He thought the party was neither solid nor sincere, and that they were actuated by passion and revenge, without any views with relation to our quiet at home, or to our affairs abroad.

But having now given an account of the session of parliament, I turn to another scene. When the new ministry undertook to serve the king, one of their demands was, that a convocation should have leave to sit, which was promised; and it sat this winter. Dr. Atterbury's book, concerning the rights of a convocation, was reprinted, with great corrections and additions. The first edition was drawn out of some imperfect and disorderly collections, and he himself soon saw that, notwithstanding the assurance and the virulence with which it was written, he had made many great mistakes in it: so, to prevent a discovery from other hands, he corrected his book in many important matters: yet he left a great deal of matter to those who answered him, and did it with such a superiority of argument and of knowledge in these matters, that his insolence in despising these answers was as extraordinary, as the parties adhering to him after such manifest discoveries. Dr. Kennet laid him so open, not only in many particulars, but in a thread of ignorance that ran through his whole book, that if he had not had a measure of confidence peculiar to himself, he must have been much humbled under it*. The clergy hoped to recover many lost privileges by the help of his performances: they fancied they had a right to be a part of the parliament: so they looked on him as their champion, and on most of the bishops as the betrayers of the rights of the church: this was encouraged by the new ministry: they were displeased with the bishops for adhering to the old ministry; and they hoped, by the terror of a convocation, to have forced them to apply to them for shelter. The jacobites intended to put us all in such a flame as they hoped would disorder the government. The things the convocation pretended to were, first, that they had a right to sit whensoever the parliament sat; so that they could not be prorogued but when the two houses were prorogued: next, they advanced that they had no need of a licence to enter upon debates, and to prepare matters, though it was confessed that the practice for a hundred years was against them: but they thought the convocation lay under no farther restraint than that the parliament was under; and as they could pass no act without the royal assent, so they confessed that they could not enact or publish a canon without the king's licence. Anciently the clergy granted their own subsidies apart, but ever since the reformation the grant of the convocation was not thought good till it was ratified in parliament: but the rule of subsidies being so high on the clergy, they had submitted to be taxed by the house of commons ever since the year 1665; though no memorials were left to inform us how that matter was consented to so generally, that no opposition of any sort was made to it. The giving of money being yielded up, which was the chief business of convocations, they had after that nothing to do; so they sat only for form's sake, and were adjourned of course; nor did they ever pretend, notwithstanding all the danger that religion was in during the former reigns, to sit and act as a synod; but now this was demanded as a right, and they complained of their being so often prorogued as a violation of their constitution, for which all the bishops, but more particularly the archbishop of Canterbury, was cried out on: they said, that he and the bishops looked so much to their own interests, that they forgot the interests of the church, or rather betrayed them. The greater part of the clergy were in no good temper; they hated the toleration, and were heavily charged with the taxes, which made them very uneasy; and this disposed them to be soon inflamed by those who were seeking out all possible methods to disorder our affairs. They hoped to have engaged them against the supremacy, and reckoned that in the feeble state to which the government was * See the names of Kennet's works, and other authorities relating to this controversy, in Kippis's edition of the Biog. Britannica.

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