James, far from abandoning his plans, was more resolute to carry them into effect. The Earl of Rochester, his own brother-in-law, and others who had hitherto stood by him, having in vain remonstrated against his madness, resigned their offices; but Jeffreys still recklessly pushed him forward in his headlong career. In open violation of the test act, four Catholic lords were introduced into the cabinet, and one of them, Lord Bellasis, was placed at the head of the treasury in the room of the Protestant Earl of Rochester. Among such colleagues the lord chancellor was contented to sit in council, and the wonder is that he did not follow the example of Sunderland and other renegades, who at this time, to please the king, professed to change their religion, and were reconciled to the church of Rome. Perhaps, with his peculiar sagacity, Jeffreys thought it would be a greater sacrifice in the king’s eyes to appear to be daily wounding his conscience by submitting to measures which he must be supposed inwardly to condemn.
As a grand coup d’état, he undertook to obtain a solemn decision of the judges in favor of the dispensing power,[138] and for this purpose a fictitious action was brought against Sir Edward Hales, the lieutenant of the Tower, an avowed Roman Catholic, in the name of his coachman, for holding an office in the army without having taken the oath of supremacy, or received the sacrament according to the rites of the church of England, or signed the declaration against transubstantiation. Jeffreys had put the great seal to letters patent, authorizing him to hold the office without these tests, “non obstante” the act of Parliament. This dispensation was pleaded in bar of the action, and upon a demurrer to the plea, after a sham argument by counsel, all the judges except one (Baron Street) held the plea to be sufficient, and pronounced judgment for the defendant. It was now proclaimed at court that the law was not any longer an obstacle to any scheme that might be thought advisable.
The Earl of Castlemaine was sent to Rome, regularly commissioned as ambassador to his holiness the pope, a papal nuncio being reciprocally received at St. James’s. But assuming that religion was not embraced in the negotiations between the two courts, however impolitic the proceeding might be, I do not think that the king and the chancellor are liable to be blamed, as they have been by recent historians, for having in this instance violated acts of Parliament. If all those are examined which had passed from the commencement of the reformation down to the “Bill of Rights,” it will probably be found that none of them can be applied to a mere diplomatic intercourse with the pope, however stringent their provisions may be against receiving bulls or doing any thing in derogation of the king’s supremacy.[139]
There can be no doubt of the illegality of the next measure of the king and the chancellor. The Court of High Commission was revived with some slight modification, although it had been abolished in the reign of Charles I. by an act of Parliament, which forbade the erection of any similar court; and Jeffreys, having deliberately put the great seal to the patent creating this new arbitrary tribunal, undertook to preside in it. The commissioners were vested with unlimited jurisdiction over the church of England, and were empowered, even in cases of suspicion, to proceed inquisitorially, like the abolished court, “notwithstanding any law or statute to the contrary.” The object was to have all ecclesiastics under complete control, lest any of them should oppose the intended innovations in religion.[140]
Jeffreys selected as his first victims, Sharp, rector of St. Giles’s, called the “railing parson,” who had made himself very obnoxious to the government by inveighing against the errors of Popery—and Compton, Bishop of London, his diocesan, who had raised the storm against the dispensing power in the House of Lords. A mandate was issued to the bishop to suspend the rector, and this being declined on the ground that no man can be lawfully condemned till he has been heard in his defence, both were summoned before the high commission.
The bishop appearing, and being asked by the chancellor why he had not obeyed the king’s orders by suspending Dr. Sharp, prayed time to prepare his defence, as his counsel were on the circuit, and he begged to have a copy of the commission. A week’s time was given; but as to the commission, he was told “all the coffee-houses had it for a penny.” On the eighth day the business was resumed; but the bishop still said he was unprepared, having great difficulty to procure a copy of the commission; when the chancellor made him a bantering apology. “My lord, in telling you our commission was to be seen in every coffee-house, I did not speak with any design to reflect on your lordship, as if you were a haunter of coffee-houses. I abhor the thoughts of it!” A further indulgence of a fortnight was granted.
At the day appointed, the bishop again appeared with four doctors of the civil law, who were so frightened, that they hardly dared to say a word for him; but he himself firmly, though mildly, argued, “that he had acted jurisperitorum consilio, and could not have had any bad motive; that he should not have been justified in obeying an illegal order; that he had privately recommended to Dr. Sharp not to preach; that this advice had been followed, so that the king’s wish was complied with; and that if he had committed any fault, he ought to be tried for it before his archbishop and brother bishops.”
Several of the commissioners were inclined to let him off with an admonition; but Jeffreys obtained and pronounced sentence of suspension during the king’s pleasure, both on the bishop and the rector.[141]
There was another political trial where justice was done to the accused, although Jeffreys presided at it. A charge was brought against Lord Delamere, the head of an ancient family in Cheshire, that he had tried to excite an insurrection in that county in aid of Monmouth’s rebellion. An indictment for high treason being found against him, he was brought to trial upon it before Jeffreys, as lord high steward, and thirty peers-triers. The king was present, and was very desirous of a conviction, as Lord Delamere, when a member of the House of Commons, had taken an active part in supporting the exclusion bill.
Jeffreys did his best to gratify this wish. According to the habit he had lately acquired in the west, he at first tried to induce the noble prisoner to confess, in the hope of pardon “from the king’s known clemency.” “My lord,” said he, “if you are conscious to yourself that you are guilty of this heinous crime, give glory to God, make amends to his vicegerent the king, by a plain and full discovery of your guilt, and do not, by an obstinate persisting in the denial of it, provoke the just indignation of your prince, who has made it appear to the world that his inclinations are rather to show mercy than inflict punishment.”