Shaftesbury committed to

Essex,

others for

As the facile princeps of the constitutional opposition, Shaftesbury was marked out as a victim, and in July he was comthe Tower; mitted to the Tower upon the charge of having suborned witnesses to give false testimony implicating the queen and the duke of York with the popish plot. And yet, despite the pressure which the crown applied, the grand jury of Middlesex ignored the bill, and the indomitable agitator thus released returned in triumph to the capital, where his intrigues and conspiracies culminated at last in an abortive appeal to his comrades to rise in arms. Thus forced by failure to seek safety in died Janu- flight, he found a refuge at Amsterdam, where he died in Janary, 1683; indictment uary, 1683. Undaunted by his loss, Monmouth, backed by of Russell, Lord Russell, Lord Essex, Lord Howard of Ettrick, Hampden, Sidney, and and Algernon Sidney, pressed on the agitation to a point which complicity seems to have warranted the charge of an intention to levy war house plot; against the king; while certain of their more desperate subordinates went so far as to devise, without their participation, a plot for the assassination of Charles and James as they passed the Rye-house on the road by which the king usually returned from Newmarket to London. Despite the lack of evidence that they were privy to that plot, which was improperly blended conviction with the other charge, Lord Russell and Algernon Sidney were and Sidney; convicted; 2 and to escape the fate which they suffered, Essex sought death by his own hand in the Tower, while Monmouth fled in terror over-sea. On the very day upon which Russell perished in vindication of the lawfulness of resistance, the University of Oxford published its famous decree declaring to passive passive obedience to be a religious duty, "clear, absolute, and obedience. without exception of any state or order of men." 3

in the Rye

of Russell

Oxford's

decree as

Attack upon the corporations;

Having thus trampled the leaders of the country party in the dust by means of the judicial power, Charles proceeded to make his victory complete by directing the same engine against their strongholds, the towns, which were now called upon by writs of quo warranto to show cause why their charters should not be forfeited by reason of abuse of their privileges. The

1 State Trials, vol. viii. pp. 759-842; James (Memoirs), vol. i. pp. 687, 714.

2 State Trials, vol. ix. pp. 577, 823. For a concise statement of the legal questions involved, see Sir J. F. Stephen's Hist. of the Crim. Law, vol. i. pp. 408-412.

8 July 21, 1683. Wilkins, Conc., vol. iv. p. 610; Somers' Tracts, vol. viii. pp. 420, 424. The decree was publicly burned by order of the house of lords in 1709.

part in the

the charter

infamous Jeffreys, who had risen to a bad eminence in the Jeffreys' preceding political trials of individuals, was specially charged work; with the task of subduing the corporations; and while on the northern circuit in 1684, he is said to have "made all the charters, like the walls of Jericho, fall down before him, and returned laden with surrenders, the spoils of towns."1 In the forfeiture of course of these unprecedented proceedings to take away cor- of London; porate privileges the disloyal capital, in which the administration of justice was largely influenced by elected sheriffs by whom all juries were chosen, was made the subject of an information, quo warranto, in the king's bench, where it was alleged that its charter had been forfeited, (1) by reason of the imposition of certain tolls through an ordinance of its own, and (2) by reason of the publication of a petition presented to the king in 1679 through its common council calling upon him to order a meeting of parliament. By reason of these two acts a judgment of forfeiture was rendered against the corporation,2 which was used as a lever to compel it to submit to certain regulations permitting the enjoyment of its franchises under conditions that really involved a surrender to the crown of its municipal independence. With the principle of law thus settled that a misuser of corporate powers was a basis for a judgment of forfeiture, the position of every town in the realm became precarious; and many of them, to prevent attack, made many voluntary surrenders, followed, during the remainder of this surrenders; and a greater part of the next reign, by renewals of their char- character ters, under which the exercise of all municipal powers was charters; generally vested in a mayor and town council, nominated by the crown in the first insfance and then perpetuated by selfelection. Thus was finally consummated the process of reac- consummation which, before the close of the Middle Ages, had brought process of about the disfranchisement of the landless freeman and lesser freeholders within the shires, and a still more sweeping restriction of the franchise in the cities and towns. In the effort heretofore made to ascertain who were the electors of borough representatives, the general conclusion was reached that the electors in a city were the citizens; in a borough, the bur

1 North's Examen, p. 626; Hallam, 8 North, pp. 624-627; Bulstrode, p. Const. Hist., vol. ii. p. 455. 388.

2 State Trials, vol. viii. pp. 1039

voluntary

of the new

tion of the

chisement;

suffrage

and vest it

in selfelected governing bodies;

gesses.

Who were citizens and who were burgesses seems to have depended everywhere upon local custom, and such custendency to tom was uniform only in its tendency to take away the suffrage take away from the main body of the townsmen and vest it either in a from main self-elected governing body, — generally known as the mayor body of townsmen and common council, or in a still smaller circle of "selectmen" " nominated and controlled by them. Thus through the silent operation of local custom, which finally received legal sanction, the rights of the many were usurped by the few; the self-elected governing bodies of the towns finally assumed the exercise of the electoral rights that had originally belonged to the whole community. In the charters of incorporation which began to be issued to the municipalities after the accession of the house of Tudor, the right of electing representatives in parliament was usually vested in the governing body styled the mayor and common council. When the fact is remembered that these governing bodies were as a rule nominated by the crown in the first instance, and then perpetuated by self-election, it is quite possible to understand how those boroughs, which were not already under the dominion of the great landed proprietors, became subject to royal control, or rather to that of the local magnates known as the high stewards, by whom, in many instances, the royal and aristocratic magnates; influence was directly exercised. Through the results of this

the high stewards as local

policy of creating petty boroughs

as a means

of packing

lower house.

disfranchising process the county constituencies were finally overshadowed by the paramount influence of the greater landowners, while the borough constituencies became, in the main, the property of the crown and the aristocracy. The Tudor kings, whose policy it was not to abolish parliaments, but to convert them into convenient tools for the advancement of their own interests, systematically pursued a policy of creating petty parliamentary boroughs, especially in localities where the crown had the greatest influence, for the express purpose of packing the lower house with members amenable to royal dictation. The policy thus inaugurated by the Tudors "was pursued by the Stuarts; and the last two of that race violated the liberties of the few corporations which still retained popular constitutions after the encroachments of centuries."1

1 May, Const. Hist., vol. iii. p. 280, citing the case of Quo Warranto, 1683. See his entire statement of the loss of

popular rights by English municipal corporations. Ibid., pp. 275-283.

guards,

While Charles was thus striving to stifle the voice of the Charles strengthEnglish democracy in those cities and towns in which it was ened the still able to express itself, he was careful to provide against he nucleus the might of the people in another form by strengthening the of present standing guards, a standing military force retained in the royal service army; when the army of the Commonwealth was disbanded after the Restoration, and consisting of Monk's Foot Regiment known as the Coldstream, and another of horse, to which was added still another formed from troops brought from Dunkirk. The body thus made up, amounting in 1662 to five thousand men, was swelled by the addition of the garrison of Tangier, recalled to England in 1684, to about seven thousand foot and seventeen hundred cavalry and dragoons, the nucleus of the regular army of the present day. When in the midst of such prosperous conditions, with his enemies cowering at his feet, Charles was called upon to meet the inevitable, he gave the clue to his mysterious dealings with France, which began in 1670 with the making of the secret treaty of Dover, by a communion profession of the faith of the Church of Rome, in communion with Rome February with which he died February 6, 1685.1 6, 1685.

1 See the accounts in Lingard, vol. x. pp. 107-110; and in Green, Hist. of the Eng. People, vol. iv. pp. 65, 66.

died in

Origin of the social

contract

theory;

CHAPTER II.

JAMES II. AND THE ATTEMPT AT REACTION.

I. IN the midst of the great upheaval that overturned the monarchy and established the Commonwealth, the modern school of English political theory begins with the speculations of Hobbes, who developed in his "Leviathan "1 the then novel idea that civil society had its origin in an original contract between its members, by virtue of which each, in order to secure the boon of living in peace with all the rest, agreed to by Hobbes; give up so much of his natural rights as was inconsistent with

its essence as stated

such a state. Then, for the purpose of constituting "a common power to keep them in awe, and to direct their actions to the common benefit," a further surrender was supposed to have been made upon the part of all of the right of governing the whole in favor of some person or body, "and he that carrieth this person is called sovereign, and hath sovereign power; and subject; and every one besides, his subject." "The sovereign, which is

sovereign

wrong in the legal sense;

the person of the commonwealth," commands his subjects through civil law, defined to be "those rules which the commonwealth hath commanded him by word, writing, or other sufficient sign of the will, to make use of for the distinction of right and right and wrong; that is to say, of what is contrary and what is not contrary to the rule." And thus the important conclusion is reached that right and wrong, in the legal sense, is nothing more than that which the law of the state allows and forbids. As Aristotle accomplished the separation of ethics separation from politics, so Hobbes worked out the further separation of of policy policy from legality, of that which is wise and expedient from that which is allowed by positive law. At that point he fell

from legality;

1 In 1651 appeared the “Leviathan, or the Matter, Form, and Power of a Commonwealth, Ecclesiastical and Civil, with a quaint frontispiece. . . of a crowned giant, made up of tiny figures of human beings and bearing sword and crozier in the two hands."

Not until the theory of the Contrat Social had passed through the hands of Locke did Rousseau make it "one of the most successful and fatal of political impostures." Sir F. Pollock, Hist. of the Science of Politics, p. 75.