and very invidious. It was the business of that officer to conduct political prosecutions, to collect the evidence, to instruct the counsel for the Crown, to see that the prisoners were not liberated on insufficient bail, to see that the juries were not composed of persons hostile to the government. In the days of Charles and James, the Solicitors of the Treasury had been with too much reason accused of employing all the vilest artifices of chicanery against men obnoxious to the Court. The new government ought to have made a choice which was above all suspicion. Unfortunately Mordaunt and Delamere pitched upon Aaron Smith, an acrimonious and unprincipled politician, who had been the legal adviser of Titus Oates in the days of the Popish Plot, and who had been deeply implicated in the Rye House Plot. Richard Hampden, a man of decided opinions but of moderate temper, objected to this appointment. His objections however were overruled. The Jacobites, who hated Smith and had reason to hate him, affirmed that he had obtained his place by bullying the Lords of the Treasury, and particularly by threatening that, if his just claims were disregarded, he would be the death of Hampden. 31
Some weeks elapsed before all the arrangements which have been mentioned were publicly announced: and meanwhile many important events had taken place. As soon as the new Privy Councillors had been sworn in, it was necessary to submit to them a grave and pressing question. Could the Convention now assembled be turned into a Parliament? The Whigs, who had a decided majority in the Lower House, were all for the affirmative. The Tories, who knew that, within the last month, the public feeling had undergone a considerable change, and who hoped that a general election would add to their strength, were for the negative. They maintained that to the existence of a Parliament royal writs were indispensably necessary. The Convention had not been summoned by such writs: the original defect could not now be supplied: the Houses were therefore mere clubs of private men, and ought instantly to disperse.
It was answered that the royal writ was mere matter of form, and that to expose the substance of our laws and liberties to serious hazard for the sake of a form would be the most senseless superstition. Wherever the Sovereign, the Peers spiritual and temporal, and the Representatives freely chosen by the constituent bodies of the realm were met together, there was the essence of a Parliament. Such a Parliament was now in being; and what could be more absurd than to dissolve it at a conjuncture when every hour was precious, when numerous important subjects required immediate legislation, and when dangers, only to be averted by the combined efforts of King, Lords, and Commons, menaced the State? A Jacobite indeed might consistently refuse to recognise the Convention as a Parliament. For he held that it had from the beginning been an unlawful assembly, that all its resolutions were nullities, and that the Sovereigns whom it had set up were usurpers. But with what consistency could any man, who maintained that a new Parliament ought to be immediately called by writs under the great seal of William and Mary, question the authority which had placed William and Mary on the throne? Those who held that William was rightful King must necessarily hold that the body from which he derived his right was itself a rightful Great Council of the Realm. Those who, though not holding him to be rightful King, conceived that they might lawfully swear allegiance to him as King in fact, might surely, on the same principle, acknowledge the Convention as a Parliament in fact. It was plain that the Convention was the fountainhead from which the authority of all future Parliaments must be derived, and that on the validity of the votes of the Convention must depend the validity of every future statute. And how could the stream rise higher than the source? Was it not absurd to say that the Convention was supreme in the state, and yet a nullity; a legislature for the highest of all purposes, and yet no legislature for the humblest purposes; competent to declare the throne vacant, to change the succession, to fix the landmarks of the constitution, and yet not competent to pass the most trivial Act for the repairing of a pier or the building of a parish church?
These arguments would have had considerable weight, even if every precedent had been on the other side. But in truth our history afforded only one precedent which was at all in point; and that precedent was decisive in favour of the doctrine that royal writs are not indispensably necessary to the existence of a Parliament. No royal writ had summoned the Convention which recalled Charles the Second. Yet that Convention had, after his Restoration, continued to sit and to legislate, had settled the revenue, had passed an Act of amnesty, had abolished the feudal tenures. These proceedings had been sanctioned by authority of which no party in the state could speak without reverence. Hale had borne a considerable share in them, and had always maintained that they were strictly legal. Clarendon, little as he was inclined to favour any doctrine derogatory to the rights of the Crown, or to the dignity of that seal of which he was keeper, had declared that, since God had, at a most critical conjuncture, given the nation a good Parliament, it would be the height of folly to look for technical flaws in the instrument by which that Parliament was called together. Would it be pretended by any Tory that the Convention of 1660 had a more respectable origin than the Convention of 1689? Was not a letter written by the first Prince of the Blood, at the request of the whole peerage, and of hundreds of gentlemen who had represented counties and towns, at least as good a warrant as a vote of the Rump?
Weaker reasons than these would have satisfied the Whigs who formed the majority of the Privy Council. The King therefore, on the fifth day after he had been proclaimed, went with royal state to the House of Lords, and took his seat on the throne. The Commons were called in; and he, with many gracious expressions, reminded his hearers of the perilous situation of the country, and exhorted them to take such steps as might prevent unnecessary delay in the transaction of public business. His speech was received by the gentlemen who crowded the bar with the deep hum by which our ancestors were wont to indicate approbation, and which was often heard in places more sacred than the Chamber of the Peers. 32 As soon as he had retired, a Bill declaring the Convention a Parliament was laid on the table of the Lords, and rapidly passed by them. In the Commons the debates were warm. The House resolved itself into a Committee; and so great was the excitement that, when the authority of the Speaker was withdrawn, it was hardly possible to preserve order. Sharp personalities were exchanged. The phrase, "hear him," a phrase which had originally been used only to silence irregular noises, and to remind members of the duty of attending to the discussion, had, during some years, been gradually becoming what it now is; that is to say, a cry indicative, according to the tone, of admiration, acquiescence, indignation, or derision. On this occasion, the Whigs vociferated "Hear, hear," so tumultuously that the Tories complained of unfair usage. Seymour, the leader of the minority, declared that there could be no freedom of debate while such clamour was tolerated. Some old Whig members were provoked into reminding him that the same clamour had occasionally been heard when he presided, and had not then been repressed. Yet, eager and angry as both sides were, the speeches on both sides indicated that profound reverence for law and prescription which has long been characteristic of Englishmen, and which, though it runs sometimes into pedantry and sometimes into superstition, is not without its advantages. Even at that momentous crisis, when the nation was still in the ferment of a revolution, our public men talked long and seriously about all the circumstances of the deposition of Edward the Second and of the deposition of Richard the Second, and anxiously inquired whether the assembly which, with Archbishop Lanfranc at its head, set aside Robert of Normandy, and put William Rufus on the throne, did or did not afterwards continue to act as the legislature of the realm. Much was said about the history of writs; much about the etymology of the word Parliament. It is remarkable, that the orator who took the most statesmanlike view of the subject was old Maynard. In the civil conflicts of fifty eventful years he had learned that questions affecting the highest interests of the commonwealth were not to be decided by verbal cavils and by scraps of Law French and Law Latin; and, being by universal acknowledgment the most subtle and the most learned of English jurists, he could express what he felt without the risk of being accused of ignorance and presumption. He scornfully thrust aside as frivolous and out of place all that blackletter learning, which some men, far less versed in such matters than himself, had introduced into the discussion. "We are," he said, "at this moment out of the beaten path. If therefore we are determined to move only in that path, we cannot move at all. A man in a revolution resolving to do nothing which is not strictly according to established form resembles a man who has lost himself in the wilderness, and who stands crying 'Where is the king's
