Is it reasonable, we ask in our turn, that you should have the privilege of being tried by all the members of your House, that is to say, by your brothers, your uncles, your first cousins, your second cousins, your fathers in law, your brothers in law, your most intimate friends? You marry so much into each other's families, you live so much in each other's society, that there is scarcely a nobleman who is not connected by consanguinity or affinity with several others, and who is not on terms of friendship with several more. There have been great men whose death put a third or fourth part of the baronage of England into mourning. Nor is there much danger that even those peers who may be unconnected with an accused lord will be disposed to send him to the block if they can with decency say 'Not Guilty, upon my honour.' For the ignominious death of a single member of a small aristocratical body necessarily leaves a stain on the reputation of his fellows. If, indeed, your Lordships proposed that every one of your body should be compelled to attend and vote, the Crown might have some chance of obtaining justice against a guilty peer, however strongly connected. But you propose that attendance shall be voluntary. Is it possible to doubt what the consequence will be? All the prisoner's relations and friends will be in their places to vote for him. Good nature and the fear of making powerful enemies will keep away many who, if they voted at all, would be forced by conscience and honour to vote against him. The new system which you propose would therefore evidently be unfair to the Crown; and you do not show any reason for believing that the old system has been found in practice unfair to yourselves. We may confidently affirm that, even under a government less just and merciful than that under which we have the happiness to live, an innocent peer has little to fear from any set of peers that can be brought together in Westminster Hall to try him. How stands the fact? In what single case has a guiltless head fallen by the verdict of this packed jury? It would be easy to make out a long list of squires, merchants, lawyers, surgeons, yeomen, artisans, ploughmen, whose blood, barbarously shed during the late evil times, cries for vengeance to heaven. But what single member of your House, in our days, or in the days of our fathers, or in the days of our grandfathers, suffered death unjustly by sentence of the Court of the Lord High Steward? Hundreds of the common people were sent to the gallows by common juries for the Rye House Plot and the Western Insurrection. One peer, and one alone, my Lord Delamere, was brought at that time before the Court of the Lord High Steward;and he was acquitted. But, it is said, the evidence against him was legally insufficient. Be it so. So was the evidence against Sidney, against Cornish, against Alice Lisle; yet it sufficed to destroy them. But, it is said, the peers before whom my Lord Delamere was brought were selected with shameless unfairness by King James and by Jeffreys. Be it so. But this only proves that, under the worst possible King, and under the worst possible High Steward, a lord tried by lords has a better chance for life than a commoner who puts himself on his country. We cannot, therefore, under the mild government which we now possess, feel much apprehension for the safety of any innocent peer. Would that we felt as little apprehension for the safety of that government!
But it is notorious that the settlement with which our liberties are inseparably bound up is attacked at once by foreign and by domestic enemies. We cannot consent at such a crisis to relax the restraints which have, it may well be feared, already proved too feeble to prevent some men of high rank from plotting the ruin of their country. To sum up the whole, what is asked of us is that we will consent to transfer a certain power from their Majesties to your Lordships. Our answer is that, at this time, in our opinion, their Majesties have not too much power, and your Lordships have quite power enough."These arguments, though eminently ingenious, and not without real force, failed to convince the Upper House. The Lords insisted that every peer should be entitled to be a Trier. The Commons were with difficulty induced to consent that the number of Triers should never be less than thirty-six, and positively refused to make any further concession. The bill was therefore suffered to drop.184It is certain that those who in the conference on this bill represented the Commons, did not exaggerate the dangers to which the government was exposed. While the constitution of the Court which was to try peers for treason was under discussion, a treason planned with rare skill by a peer was all but carried into execution.
Marlborough had never ceased to assure the Court of Saint Germains that the great crime which he had committed was constantly present to his thoughts, and that he lived only for the purpose of repentance and reparation. Not only had he been himself converted; he had also converted the Princess Anne. In 1688, the Churchills had, with little difficulty, induced her to fly from her father's palace. In 1691, they, with as little difficulty, induced her to copy out and sign a letter expressing her deep concern for his misfortunes and her earnest wish to atone for her breach of duty.185 At the same time Marlborough held out hopes that it might be in his power to effect the restoration of his old master in the best possible way, without the help of a single foreign soldier or sailor, by the votes of the English Lords and Commons, and by the support of the English army. We are not fully informed as to all the details of his plan. But the outline is known to us from a most interesting paper written by James, of which one copy is in the Bodleian Library, and another among the archives of the French Foreign Office.
