The History of England, from the Accession of James II — Volume 5

CHAPTER XXV

Trial of Spencer Cowper—Duels—Discontent of the Nation—Captain Kidd—Meeting of Parliament—Attacks on Burnet—Renewed Attack on Somers—Question of the Irish Forfeitures: Dispute between the Houses—Somers again attacked—Prorogation of Parliament—Death of James the Second—The Pretender recognised as King—Return of the King—General Election—Death of William

THE passions which had agitated the Parliament during the late session continued to ferment in the minds of men during the recess, and, having no longer a vent in the senate, broke forth in every part of the empire, destroyed the peace of towns, brought into peril the honour and the lives of innocent men, and impelled magistrates to leave the bench of justice and attack one another sword in hand. Private calamities, private brawls, which had nothing to do with the disputes between court and country, were turned by the political animosities of that unhappy summer into grave political events.

One mournful tale, which called forth the strongest feelings of the contending factions, is still remembered as a curious part of the history of our jurisprudence, and especially of the history of our medical jurisprudence. No Whig member of the lower House, with the single exception of Montague, filled a larger space in the public eye than William Cowper. In the art of conciliating an audience, Cowper was preeminent. His graceful and engaging eloquence cast a spell on juries; and the Commons, even in those stormy moments when no other defender of the administration could obtain a hearing, would always listen to him. He represented Hertford, a borough in which his family had considerable influence; but there was a strong Tory minority among the electors, and he had not won his seat without a hard fight, which had left behind it many bitter recollections. His younger brother Spencer, a man of parts and learning, was fast rising into practice as a barrister on the Home Circuit.

At Hertford resided an opulent Quaker family named Stout. A pretty young woman of this family had lately sunk into a melancholy of a kind not very unusual in girls of strong sensibility and lively imagination who are subject to the restraints of austere religious societies. Her dress, her looks, her gestures, indicated the disturbance of her mind. She sometimes hinted her dislike of the sect to which she belonged. She complained that a canting waterman who was one of the brotherhood had held forth against her at a meeting. She threatened to go beyond sea, to throw herself out of window, to drown herself. To two or three of her associates she owned that she was in love; and on one occasion she plainly said that the man whom she loved was one whom she never could marry. In fact, the object of her fondness was Spencer Cowper, who was already married. She at length wrote to him in language which she never would have used if her intellect had not been disordered. He, like an honest man, took no advantage of her unhappy state of mind, and did his best to avoid her. His prudence mortified her to such a degree that on one occasion she went into fits. It was necessary, however, that he should see her, when he came to Hertford at the spring assizes of 1699. For he had been entrusted with some money which was due to her on mortgage. He called on her for this purpose late one evening, and delivered a bag of gold to her. She pressed him to be the guest of her family; but he excused himself and retired. The next morning she was found dead among the stakes of a mill dam on the stream called the Priory River. That she had destroyed herself there could be no reasonable doubt. The coroner's inquest found that she had drowned herself while in a state of mental derangement. But her family was unwilling to admit that she had shortened her own life, and looked about for somebody who might be accused of murdering her. The last person who could be proved to have been in her company was Spencer Cowper. It chanced that two attorneys and a scrivener, who had come down from town to the Hertford assizes, had been overheard, on that unhappy night, talking over their wine about the charms and flirtations of the handsome Quaker girl, in the light way in which such subjects are sometimes discussed even at the circuit tables and mess tables of our more refined generation. Some wild words, susceptible of a double meaning, were used about the way in which she had jilted one lover, and the way in which another lover would punish her for her coquetry. On no better grounds than these her relations imagined that Spencer Cowper had, with the assistance of these three retainers of the law, strangled her, and thrown her corpse into the water. There was absolutely no evidence of the crime. There was no evidence that any one of the accused had any motive to commit such a crime; there was no evidence that Spencer Cowper had any connection with the persons who were said to be his accomplices. One of those persons, indeed, he had never seen. But no story is too absurd to be imposed on minds blinded by religious and political fanaticism. The Quakers and the Tories joined to raise a formidable clamour. The Quakers had, in those days, no scruples about capital punishments. They would, indeed, as Spencer Cowper said bitterly, but too truly, rather send four innocent men to the gallows than let it be believed that one who had their light within her had committed suicide. The Tories exulted in the prospect of winning two seats from the Whigs. The whole kingdom was divided between Stouts and Cowpers. At the summer assizes Hertford was crowded with anxious faces from London and from parts of England more distant than London. The prosecution was conducted with a malignity and unfairness which to us seem almost incredible; and, unfortunately, the dullest and most ignorant judge of the twelve was on the bench. Cowper defended himself and those who were said to be his accomplices with admirable ability and self possession. His brother, much more distressed than himself, sate near him through the long agony of that day. The case against the prisoners rested chiefly on the vulgar error that a human body, found, as this poor girl's body had been found, floating in water, must have been thrown into the water while still alive. To prove this doctrine the counsel for the Crown called medical practitioners, of whom nothing is now known except that some of them had been active against the Whigs at Hertford elections. To confirm the evidence of these gentlemen two or three sailors were put into the witness box. On the other side appeared an array of men of science whose names are still remembered. Among them was William Cowper, not a kinsman of the defendant, but the most celebrated anatomist that England had then produced. He was, indeed, the founder of a dynasty illustrious in the history of science; for he was the teacher of William Cheselden, and William Cheselden was the teacher of John Hunter. On the same side appeared Samuel Garth, who, among the physicians of the capital, had no rival except Radcliffe, and Hans Sloane, the founder of the magnificent museum which is one of the glories of our country. The attempt of the prosecutors to make the superstitions of the forecastle evidence for the purpose of taking away the lives of men was treated by these philosophers with just disdain. The stupid judge asked Garth what he could say in answer to the testimony of the seamen. "My Lord," replied Garth, "I say that they are mistaken. I will find seamen in abundance to swear that they have known whistling raise the wind."

The jury found the prisoners Not guilty; and the report carried back to London by persons who had been present at the trial was that everybody applauded the verdict, and that even the Stouts seemed to be convinced of their error. It is certain, however, that the malevolence of the defeated party soon revived in all its energy. The lives of the four men who had just been absolved were again attacked by means of the most absurd and odious proceeding known to our old law, the appeal of murder. This attack too failed. Every artifice of chicane was at length exhausted; and nothing was left to the disappointed sect and the disappointed faction except to calumniate those whom it had been found impossible to murder. In a succession of libels Spencer Cowper was held up to the execration of the public. But the public did him justice. He rose to high eminence in his profession; he at length took his seat, with general applause, on the judicial bench, and there distinguished himself by the humanity which he never failed to show to unhappy men who stood, as he had once stood, at the bar. Many who seldom trouble themselves about pedigrees may be interested by learning that he was the grandfather of that excellent man and excellent poet William Cowper, whose writings have long been peculiarly loved and prized by the members of the religious community which, under a strong delusion, sought to slay his innocent progenitor.¹⁹

Though Spencer Cowper had escaped with life and honour, the Tories had carried their point. They had secured against the next election the support of the Quakers of Hertford; and the consequence was that the borough was lost to the family and to the party which had lately predominated there.

In the very week in which the great trial took place at Hertford, a feud arising out of the late election for Buckinghamshire very nearly produced fatal effects. Wharton, the chief of the Buckinghamshire Whigs, had with difficulty succeeded in bringing in his brother as one of the knights of the shire. Graham Viscount Cheyney, of the kingdom of Scotland, had been returned at the head of the poll by the Tories. The two noblemen met at the quarter sessions. In England Cheyney was before the Union merely an Esquire. Wharton was undoubtedly entitled to take place of him, and had repeatedly taken place of him without any dispute. But angry passions now ran so high that a decent pretext for indulging them was hardly thought necessary. Cheyney fastened a quarrel on Wharton. They drew. Wharton, whose cool good humoured courage and skill in fence were the envy of all the swordsmen of that age, closed with his quarrelsome neighbour, disarmed him, and gave him his life.

A more tragical duel had just taken place at Westminster. Conway Seymour, the eldest son of Sir Edward Seymour, had lately come of age. He was in possession of an independent fortune of seven thousand pounds a year, which he lavished in costly fopperies. The town had nicknamed him Beau Seymour. He was displaying his curls and his embroidery in Saint James's Park on a midsummer evening, after indulging too freely in wine, when a young officer of the Blues named Kirke, who was as tipsy as himself, passed near him. "There goes Beau Seymour," said Kirke. Seymour flew into a rage. Angry words were exchanged between the foolish boys. They immediately went beyond the precincts of the Court, drew, and exchanged some pushes. Seymour was wounded in the neck. The wound was not very serious; but, when his cure was only half completed, he revelled in fruit, ice and Burgundy till he threw himself into a violent fever. Though a coxcomb and a voluptuary, he seems to have had some fine qualities. On the last day of his life he saw Kirke. Kirke implored forgiveness; and the dying man declared that he forgave as he hoped to be forgiven. There can be no doubt that a person who kills another in a duel is, according to law, guilty of murder. But the law had never been strictly enforced against gentlemen in such cases; and in this case there was no peculiar atrocity, no deep seated malice, no suspicion of foul play. Sir Edward, however, vehemently declared that he would have life for life. Much indulgence is due to the resentment of an affectionate father maddened by the loss of a son. But there is but too much reason to believe that the implacability of Seymour was the implacability, not of an affectionate father, but of a factious and malignant agitator. He tried to make what is, in the jargon of our time, called political capital out of the desolation of his house and the blood of his first born. A brawl between two dissolute youths, a brawl distinguished by nothing but its unhappy result from the hundred brawls which took place every month in theatres and taverns, he magnified into an attack on the liberties of the nation, an attempt to introduce a military tyranny. The question was whether a soldier was to be permitted to insult English gentlemen, and, if they murmured, to cut their throats? It was moved in the Court of King's Bench that Kirke should either be brought to immediate trial or admitted to bail. Shower, as counsel for Seymour, opposed the motion. But Seymour was not content to leave the case in Shower's hands. In defiance of all decency, he went to Westminster Hall, demanded a hearing, and pronounced a harangue against standing armies. "Here," he said, "is a man who lives on money taken out of our pockets. The plea set up for taxing us in order to support him is that his sword protects us, and enables us to live in peace and security. And is he to be suffered to use that sword to destroy us?" Kirke was tried and found guilty of manslaughter. In his case, as in the case of Spencer Cowper, an attempt was made to obtain a writ of appeal. The attempt failed; and Seymour was disappointed of his revenge; but he was not left without consolation. If he had lost a son, he had found, what he seems to have prized quite as much, a fertile theme for invective.

The King, on his return from the Continent, found his subjects in no bland humour. All Scotland, exasperated by the fate of the first expedition to Darien, and anxiously waiting for news of the second, called loudly for a Parliament. Several of the Scottish peers carried to Kensington an address which was subscribed by thirty-six of their body, and which earnestly pressed William to convoke the Estates at Edinburgh, and to redress the wrongs which had been done to the colony of New Caledonia. A petition to the same effect was widely circulated among the commonalty of his Northern kingdom, and received, if report could be trusted, not less than thirty thousand signatures. Discontent was far from being as violent in England as in Scotland. Yet in England there was discontent enough to make even a resolute prince uneasy. The time drew near at which the Houses must reassemble; and how were the Commons to be managed? Montague, enraged, mortified, and intimidated by the baiting of the last session, was fully determined not again to appear in the character of chief minister of finance. The secure and luxurious retreat which he had, some months ago, prepared for himself was awaiting him. He took the Auditorship, and resigned his other places. Smith became Chancellor of the Exchequer. A new commission of Treasury issued; and the first name was that of Tankerville. He had entered on his career, more than twenty years before, with the fairest hopes, young, noble, nobly allied, of distinguished abilities, of graceful manners. There was no more brilliant man of fashion in the theatre and in the ring. There was no more popular tribune in Guildhall. Such was the commencement of a life so miserable that all the indignation excited by great faults is overpowered by pity. A guilty passion, amounting to a madness, left on the moral character of the unhappy man a stain at which even libertines looked grave. He tried to make the errors of his private life forgotten by splendid and perilous services to a public cause; and, having endured in that cause penury and exile, the gloom of a dungeon, the prospect of a scaffold, the ruin of a noble estate, he was so unfortunate as to be regarded by the party for which he had sacrificed every thing as a coward, if not a traitor. Yet, even against such accumulated disasters and disgraces, his vigorous and aspiring mind bore up. His parts and eloquence gained for him the ear of the House of Lords; and at length, though not till his constitution was so broken that he was fitter for flannel and cushions than for a laborious office at Whitehall, he was put at the head of one of the most important departments of the administration. It might have been expected that this appointment would call forth clamours from widely different quarters; that the Tories would be offended by the elevation of a rebel; that the Whigs would set up a cry against the captain to whose treachery or faintheartedness they had been in the habit of imputing the rout of Sedgemoor; and that the whole of that great body of Englishmen which cannot be said to be steadily Whig or Tory, but which is zealous for decency and the domestic virtues, would see with indignation a signal mark of royal favour bestowed on one who had been convicted of debauching a noble damsel, the sister of his own wife. But so capricious is public feeling that it will be difficult, if not impossible, to find, in any of the letters, essays, dialogues, and poems which bear the date of 1699 or of 1700, a single allusion to the vices or misfortunes of the new First Lord of the Treasury. It is probable that his infirm health and his isolated position were his protection. The chiefs of the opposition did not fear him enough to hate him. The Whig junto was still their terror and their abhorrence. They continued to assail Montague and Orford, though with somewhat less ferocity than while Montague had the direction of the finances, and Orford of the marine. But the utmost spite of all the leading malecontents were concentrated on one object, the great magistrate who still held the highest civil post in the realm, and who was evidently determined to hold it in defiance of them. It was not so easy to get rid of him as it had been to drive his colleagues from office. His abilities the most intolerant Tories were forced grudgingly to acknowledge. His integrity might be questioned in nameless libels and in coffeehouse tattle, but was certain to come forth bright and pure from the most severe Parliamentary investigation. Nor was he guilty of those faults of temper and of manner to which, more than to any grave delinquency, the unpopularity of his associates is to be ascribed. He had as little of the insolence and perverseness of Orford as of the petulance and vaingloriousness of Montague. One of the most severe trials to which the head and heart of man can be put is great and rapid elevation. To that trial both Montague and Somers were put. It was too much for Montague. But Somers was found equal to it. He was the son of a country attorney. At thirty-seven he had been sitting in a stuff gown on a back bench in the Court of King's Bench. At forty-two he was the first lay dignitary of the realm, and took precedence of the Archbishop of York, and of the Duke of Norfolk. He had risen from a lower point than Montague, had risen as fast as Montague, had risen as high as Montague, and yet had not excited envy such as dogged Montague through a long career. Garreteers, who were never weary of calling the cousin of the Earls of Manchester and Sandwich an upstart, could not, without an unwonted sense of shame, apply those words to the Chancellor, who, without one drop of patrician blood in his veins, had taken his place at the head of the patrician order with the quiet dignity of a man ennobled by nature. His serenity, his modesty, his selfcommand, proof even against the most sudden surprises of passion, his selfrespect, which forced the proudest grandees of the kingdom to respect him, his urbanity, which won the hearts of the youngest lawyers of the Chancery Bar, gained for him many private friends and admirers among the most respectable members of the opposition. But such men as Howe and Seymour hated him implacably; they hated his commanding genius much; they hated the mild majesty of his virtue still more. They sought occasion against him everywhere; and they at length flattered themselves that they had found it.

Some years before, while the war was still raging, there had been loud complaints in the city that even privateers of St. Malo's and Dunkirk caused less molestation to trade than another class of marauders. The English navy was fully employed in the Channel, in the Atlantic, and in the Mediterranean. The Indian Ocean, meanwhile, swarmed with pirates of whose rapacity and cruelty frightful stories were told. Many of these men, it was said, came from our North American colonies, and carried back to those colonies the spoils gained by crime. Adventurers who durst not show themselves in the Thames found a ready market for their illgotten spices and stuffs at New York. Even the Puritans of New England, who in sanctimonious austerity surpassed even their brethren of Scotland, were accused of conniving at the wickedness which enabled them to enjoy abundantly and cheaply the produce of Indian looms and Chinese tea plantations.

In 1695 Richard Coote, Earl of Bellamont, an Irish peer who sate in the English House of Commons, was appointed Governor of New York and Massachusets. He was a man of eminently fair character, upright, courageous and independent. Though a decided Whig, he had distinguished himself by bringing before the Parliament at Westminster some tyrannical acts done by Whigs at Dublin, and particularly the execution, if it is not rather to be called the murder, of Gafney. Before Bellamont sailed for America, William spoke strongly to him about the freebooting which was the disgrace of the colonies. "I send you, my Lord, to New York," he said, "because an honest and intrepid man is wanted to put these abuses down, and because I believe you to be such a man." Bellamont exerted himself to justify the high opinion which the King had formed of him. It was soon known at New York that the Governor who had just arrived from England was bent on the suppression of piracy; and some colonists in whom he placed great confidence suggested to him what they may perhaps have thought the best mode of attaining that object. There was then in the settlement a veteran mariner named William Kidd. He had passed most of his life on the waves, had distinguished himself by his seamanship, had had opportunities of showing his valour in action with the French, and had retired on a competence. No man knew the Eastern seas better. He was perfectly acquainted with all the haunts of the pirates who prowled between the Cape of Good Hope and the Straits of Malacca; and he would undertake, if he were entrusted with a single ship of thirty or forty guns, to clear the Indian Ocean of the whole race. The brigantines of the rovers were numerous, no doubt; but none of them was large; one man of war, which in the royal navy would hardly rank as a fourth rate, would easily deal with them all in succession; and the lawful spoils of the enemies of mankind would much more than defray the charges of the expedition. Bellamont was charmed with this plan, and recommended it to the King. The King referred it to the Admiralty. The Admiralty raised difficulties, such as are perpetually raised by public boards when any deviation, whether for the better or for the worse, from the established course of proceeding is proposed. It then occurred to Bellamont that his favourite scheme might be carried into effect without any cost to the state. A few public spirited men might easily fit out a privateer which would soon make the Arabian Gulph and the Bay of Bengal secure highways for trade. He wrote to his friends in England imploring, remonstrating, complaining of their lamentable want of public spirit. Six thousand pounds would be enough. That sum would be repaid, and repaid with large interest, from the sale of prizes; and an inestimable benefit would be conferred on the kingdom and on the world. His urgency succeeded. Shrewsbury and Romney contributed. Orford, though, as first Lord of the Admiralty, he had been unwilling to send Kidd to the Indian ocean with a king's ship, consented to subscribe a thousand pounds. Somers subscribed another thousand. A ship called the Adventure Galley was equipped in the port of London; and Kidd took the command. He carried with him, besides the ordinary letters of marque, a commission under the Great Seal empowering him to seize pirates, and to take them to some place where they might be dealt with according to law. Whatever right the King might have to the goods found in the possession of these malefactors he granted, by letters patent, to the persons who had been at the expense of fitting out the expedition, reserving to himself only one tenth part of the gains of the adventure, which was to be paid into the treasury. With the claim of merchants to have back the property of which they had been robbed His Majesty of course did not interfere. He granted away, and could grant away, no rights but his own.

The press for sailors to man the royal navy was at that time so hot that Kidd could not obtain his full complement of hands in the Thames. He crossed the Atlantic, visited New York, and there found volunteers in abundance. At length, in February 1697, he sailed from the Hudson with a crew of more than a hundred and fifty men, and in July reached the coast of Madagascar.

It is possible that Kidd may at first have meant to act in accordance with his instructions. But, on the subject of piracy, he held the notions which were then common in the North American colonies; and most of his crew were of the same mind. He found himself in a sea which was constantly traversed by rich and defenceless merchant ships; and he had to determine whether he would plunder those ships or protect them. The gain which might be made by plundering them was immense, and might be snatched without the dangers of a battle or the delays of a trial. The rewards of protecting the lawful trade were likely to be comparatively small. Such as they were, they would be got only by first fighting with desperate ruffians who would rather be killed than taken, and by then instituting a proceeding and obtaining a judgment in a Court of Admiralty. The risk of being called to a severe reckoning might not unnaturally seem small to one who had seen many old buccaneers living in comfort and credit at New York and Boston. Kidd soon threw off the character of a privateer, and became a pirate. He established friendly communications, and exchanged arms and ammunition, with the most notorious of those rovers whom his commission authorised him to destroy, and made war on those peaceful traders whom he was sent to defend. He began by robbing Mussulmans, and speedily proceeded from Mussulmans to Armenians, and from Armenians to Portuguese. The Adventure Galley took such quantities of cotton and silk, sugar and coffee, cinnamon and pepper, that the very foremast men received from a hundred to two hundred pounds each, and that the captain's share of the spoil would have enabled him to live at home as an opulent gentleman. With the rapacity Kidd had the cruelty of his odious calling. He burned houses; he massacred peasantry. His prisoners were tied up and beaten with naked cutlasses in order to extort information about their concealed hoards. One of his crew, whom he had called a dog, was provoked into exclaiming, in an agony of remorse, "Yes, I am a dog; but it is you that have made me so." Kidd, in a fury, struck the man dead.

News then travelled very slowly from the eastern seas to England. But, in August 1698, it was known in London that the Adventure Galley from which so much had been hoped was the terror of the merchants of Surat, and of the villagers of the coast of Malabar. It was thought probable that Kidd would carry his booty to some colony. Orders were therefore sent from Whitehall to the governors of the transmarine possessions of the Crown, directing them to be on the watch for him. He meanwhile, having burned his ship and dismissed most of his men, who easily found berths in the sloops of other pirates, returned to New York with the means, as he flattered himself, of making his peace and of living in splendour. He had fabricated a long romance to which Bellamont, naturally unwilling to believe that he had been duped and had been the means of duping others, was at first disposed to listen with favour. But the truth soon came out. The governor did his duty firmly; and Kidd was placed in close confinement till orders arrived from the Admiralty that he should be sent to England.

To an intelligent and candid judge of human actions it will not appear that any of the persons at whose expense the Adventure Galley was fitted out deserved serious blame. The worst that could be imputed even to Bellamont, who had drawn in all the rest, was that he had been led into a fault by his ardent zeal for the public service, and by the generosity of a nature as little prone to suspect as to devise villanies. His friends in England might surely be pardoned for giving credit to his recommendation. It is highly probable that the motive which induced some of them to aid his design was genuine public spirit. But, if we suppose them to have had a view to gain, it was to legitimate gain. Their conduct was the very opposite of corrupt. Not only had they taken no money. They had disbursed money largely, and had disbursed it with the certainty that they should never be reimbursed unless the outlay proved beneficial to the public. That they meant well they proved by staking thousands on the success of their plan; and, if they erred in judgment, the loss of those thousands was surely a sufficient punishment for such an error. On this subject there would probably have been no difference of opinion had not Somers been one of the contributors. About the other patrons of Kidd the chiefs of the opposition cared little. Bellamont was far removed from the political scene. Romney could not, and Shrewsbury would not, play a first part. Orford had resigned his employments. But Somers still held the Great Seal, still presided in the House of Lords, still had constant access to the closet. The retreat of his friends had left him the sole and undisputed head of that party which had, in the late Parliament, been a majority, and which was, in the present Parliament, outnumbered indeed, disorganised and disheartened, but still numerous and respectable. His placid courage rose higher and higher to meet the dangers which threatened him. He provided for himself no refuge. He made no move towards flight; and, without uttering one boastful word, gave his enemies to understand, by the mild firmness of his demeanour, that he dared them to do their worst.