The reply was complete and triumphant. "Oates is now the smallest part of the question. He has, Your Lordships say, falsely accused the Queen Dowager and other innocent persons. Be it so. This bill gives him no indemnity. We are quite willing that, if he is guilty, he shall be punished. But for him, and for all Englishmen, we demand that punishment shall be regulated by law, and not by the arbitrary discretion of any tribunal. We demand that, when a writ of error is before Your Lordships, you shall give judgment on it according to the known customs and statutes of the realm. We deny that you have any right, on such occasions, to take into consideration the moral character of a plaintiff or the political effect of a decision. It is acknowledged by yourselves that you have, merely because you thought ill of this man, affirmed a judgment which you knew to be illegal. Against this assumption of arbitrary power the Commons protest; and they hope that you will now redeem what you must feel to be an error.
Your Lordships intimate a suspicion that Oates is mad. That a man is mad may be a very good reason for not punishing him at all.
But how it can be a reason for inflicting on him a punishment which would be illegal even if he were sane, the Commons do not comprehend. Your Lordships think that you should not be justified in calling a verdict corrupt which has not been legally proved to be so. Suffer us to remind you that you have two distinct functions to perform. You are judges; and you are legislators.
When you judge, your duty is strictly to follow the law. When you legislate, you may properly take facts from common fame. You invert this rule. You are lax in the wrong place, and scrupulous in the wrong place. As judges, you break through the law for the sake of a supposed convenience. As legislators, you will not admit any fact without such technical proof as it is rarely possible for legislators to obtain."401This reasoning was not and could not be answered. The Commons were evidently flushed with their victory in the argument, and proud of the appearance which Somers had made in the Painted Chamber. They particularly charged him to see that the report which he had made of the conference was accurately entered in the journals. The Lords very wisely abstained from inserting in their records an account of a debate in which they had been so signally discomfited. But, though conscious of their fault and ashamed of it, they could not be brought to do public penance by owning, in the preamble of the Act, that they had been guilty of injustice.
The minority was, however, strong. The resolution to adhere was carried by only twelve votes, of which ten were proxies.402Twenty-one Peers protested. The bill dropped. Two Masters in Chancery were sent to announce to the Commons the final resolution of the Peers. The Commons thought this proceeding unjustifiable in substance and uncourteous in form. They determined to remonstrate; and Somers drew up an excellent manifesto, in which the vile name of Oates was scarcely mentioned, and in which the Upper House was with great earnestness and gravity exhorted to treat judicial questions judicially, and not, under pretence of administering law, to make law.403 The wretched man, who had now a second time thrown the political world into confusion, received a pardon, and was set at liberty. His friends in the Lower House moved an address to the Throne, requesting that a pension sufficient for his support might be granted to him.404 He was consequently allowed about three hundred a year, a sum which he thought unworthy of his acceptance, and which he took with the savage snarl of disappointed greediness.
From the dispute about Oates sprang another dispute, which might have produced very serious consequences. The instrument which had declared William and Mary King and Queen was a revolutionary instrument. It had been drawn up by an assembly unknown to the ordinary law, and had never received the royal sanction. It was evidently desirable that this great contract between the governors and the governed, this titledeed by which the King held his throne and the people their liberties, should be put into a strictly regular form. The Declaration of Rights was therefore turned into a Bill of Rights; and the Bill of Rights speedily passed the Commons; but in the Lords difficulties arose.
The Declaration had settled the crown, first on William and Mary jointly, then on the survivor of the two, then on Mary's posterity, then on Anne and her posterity, and, lastly, on the posterity of William by any other wife than Mary. The Bill had been drawn in exact conformity with the Declaration. Who was to succeed if Mary, Anne, and William should all die without posterity, was left in uncertainty. Yet the event for which no provision was made was far from improbable. Indeed it really came to pass. William had never had a child. Anne had repeatedly been a mother, but had no child living. It would not be very strange if, in a few months, disease, war, or treason should remove all those who stood in the entail. In what state would the country then be left? To whom would allegiance be due? The bill indeed contained a clause which excluded Papists from the throne. But would such a clause supply the place of a clause designating the successor by name? What if the next heir should be a prince of the House of Savoy not three months old? It would be absurd to call such an infant a Papist. Was he then to be proclaimed King?
