Constitutional History of England, Henry VII to George II. Volume 3 of 3

by Henry Hallam

It has been doubted by Mr. Fox whether James had, in this part of his reign, conceived the projects commonly imputed to him, of overthrowing, or injuring by any direct acts of power, the protestant establishment of this kingdom. Neither the copious extracts from Barillon's correspondence with his own court, published by Sir John Dalrymple and himself, nor the king's own memoirs, seem, in his opinion, to warrant a conclusion that anything farther was intended than to emancipate the Roman catholics from the severe restrictions of the penal laws, securing the public exercise of their worship from molestation, and to replace them upon an equality as to civil offices, by abrogating the test act of the late reign.[83] We find nevertheless a remarkable conversation of the king himself with the French ambassador, which leaves an impression on the mind that his projects were already irreconcilable with that pledge of support he had rather unadvisedly given to the Anglican church at his accession. This interpretation of his language is confirmed by the expressions used at the same time by Sunderland, which are more unequivocal and point at the complete establishment of the catholic religion.[84] The particular care displayed by James in this conversation, and indeed in so many notorious instances, to place the army, as far as possible, in the command of catholic officers, has very much the appearance of his looking towards the employment of force in overthrowing the protestant church, as well as the civil privileges of his subjects. Yet he probably entertained confident hopes, in the outset of his reign, that he might not be driven to this necessity, or at least should only have occasion to restrain a fanatical populace. He would rely on the intrinsic excellence of his own religion, and still more on the temptations that his favour would hold out. For the repeal of the test would not have placed the two religions on a fair level. Catholics, however little qualified, would have filled, as in fact they did under the dispensing power, most of the principal stations in the court, law, and army. The king told Barillon, he was well enough acquainted with England to be assured, that the admissibility to office would make more catholics than the right of saying mass publicly. There was, on the one hand, a prevailing laxity of principle in the higher ranks, and a corrupt devotedness to power for the sake of the emoluments it could dispense, which encouraged the expectation of such a nominal change in religion as had happened in the sixteenth century. And, on the other, much was hoped by the king from the church itself. He had separated from her communion in consequence of the arguments which her own divines had furnished; he had conversed with men bred in the school of Laud; and was slow to believe that the conclusions which he had, not perhaps unreasonably, derived from the semi-protestant theology of his father's reign, would not appear equally irresistible to all minds, when free from the danger and obloquy that had attended them. Thus by a voluntary return of the clergy and nation to the bosom of the catholic church, he might both obtain an immortal renown, and secure his prerogative against that religious jealousy which had always been the aliment of political factions.[85] Till this revolution however could be brought about, he determined to court the church of England, whose boast of exclusive and unlimited loyalty could hardly be supposed entirely hollow, in order to obtain the repeal of the penal laws and disqualifications which affected that of Rome. And though the maxims of religious toleration had been always in his mouth, he did not hesitate to propitiate her with the most acceptable sacrifice, the persecution of nonconforming ministers. He looked upon the dissenters as men of republican principles; and if he could have made his bargain for the free exercise of the catholic worship, I see no reason to doubt that he would never have announced his general indulgence to tender consciences.[86]

James deceived as to the disposition of his subjects.—But James had taken too narrow a view of the mighty people whom he governed. The laity of every class, the tory gentleman almost equally with the presbyterian artisan, entertained an inveterate abhorrence of the Romish superstition. Their first education, the usual tenor of preaching, far more polemical than at present, the books most current, the tradition of ancient cruelties and conspiracies, rendered this a cardinal point of religion even with those who had little beside. Many still gave credit to the popish plot; and with those who had been compelled to admit its general falsehood, there remained, as is frequently the case, an indefinite sense of dislike and suspicion, like the swell of waves after a storm, which attached itself to all the objects of that calumny.[87] This was of course enhanced by the insolent and injudicious confidence of the Romish faction, especially the priests, in their demeanour, their language, and their publications. Meanwhile a considerable change had been wrought in the doctrinal system of the Anglican church since the restoration. The men most conspicuous in the reign of Charles II. for their writings, and for their argumentative eloquence in the pulpit, were of the class who had been denominated Latitudinarian divines; and while they maintained the principles of the Remonstrants in opposition to the school of Calvin, were powerful and unequivocal supporters of the protestant cause against Rome. They made none of the dangerous concessions which had shaken the faith of the Duke and Duchess of York, they regretted the disuse of no superstitious ceremony, they denied not the one essential characteristic of the reformation, the right of private judgment, they avoided the mysterious jargon of a real presence in the Lord's Supper. Thus such an agreement between the two churches as had been projected at different times was become far more evidently impracticable, and the separation more broad and defined.[88] These men, as well as others who do not properly belong to the same class, were now distinguished by their courageous and able defences of the reformation. The victory, in the judgment of the nation, was wholly theirs. Rome had indeed her proselytes, but such as it would have been more honourable to have wanted. The people heard sometimes with indignation, or rather with contempt, that an unprincipled minister, a temporising bishop, or a licentious poet, had gone over to the side of a monarch who made conformity with his religion the only certain path to his favour.

Prorogation of parliament.—The short period of a four years' reign may be divided by several distinguishing points of time, which make so many changes in the posture of government. From the king's accession to the prorogation of parliament on November 30, 1685, he had acted apparently in concurrence with the same party that had supported him in his brother's reign, of which his own seemed the natural and almost undistinguishable continuation. This party, which had become incomparably stronger than the opposite, had greeted him with such unbounded professions,[89] the temper of its representatives had been such in the first session of parliament, that a prince less obstinate than James might have expected to succeed in attaining an authority which the nation seemed to offer. A rebellion speedily and decisively quelled confirms every government; it seemed to place his own beyond hazard. Could he have been induced to change the order of his designs, and accustom the people to a military force, and to a prerogative of dispensing with statutes of temporal concern, before he meddled too ostensibly with their religion, he would possibly have gained both the objects of his desire. Even conversions to popery might have been more frequent, if the gross solicitations of the court had not made them dishonourable. But, neglecting the hint of a prudent adviser, that the death of Monmouth left a far more dangerous enemy behind, he suffered a victory that might have ensured him success, to inspire an arrogant confidence that led on to destruction. Master of an army, and determined to keep it on foot, he naturally thought less of a good understanding with parliament.[90] He had already rejected the proposition of employing bribery among the members, an expedient very little congenial to his presumptuous temper and notions of government.[91] They were assembled, in his opinion, to testify the nation's loyalty, and thankfulness to their gracious prince for not taking away their laws and liberties. But, if a factious spirit of opposition should once prevail, it could not be his fault if he dismissed them till more becoming sentiments should again gain ground.[92] Hence, he did not hesitate to prorogue, and eventually to dissolve, the most compliant House of Commons that had been returned since his family had sat on the throne, at the cost of £700,000, a grant of supply which thus fell to the ground, rather than endure any opposition on the subject of the test and penal laws. Yet, from the strength of the court in all divisions, it must seem not improbable to us that he might, by the usual means of management, have carried both of those favourite measures, at least through the lower house of parliament. For the Crown lost the most important division only by one vote, and had in general a majority. The very address about unqualified officers, which gave the king such offence as to bring on a prorogation, was worded in the most timid manner; the house having rejected unanimously the words first inserted by their committee, requesting that his majesty would be pleased not to continue them in their employments, for a vague petition that "he would be graciously pleased to give such directions that no apprehensions or jealousies may remain in the hearts of his majesty's good and faithful subjects."[93]

The second period of this reign extends from the prorogation of parliament to the dismissal of the Earl of Rochester from the treasury in 1686. During this time James, exasperated at the reluctance of the Commons to acquiesce in his measures, and the decisive opposition of the church, threw off the half restraint he had imposed on himself; and showed plainly that, with a bench of judges to pronounce his commands, and an army to enforce them, he would not suffer the mockery of constitutional limitations to stand any longer in his way. Two important steps were made this year towards the accomplishment of his designs, by the judgment of the court of king's bench in the case of Sir Edward Hales, confirming the right of the Crown to dispense with the test act, and by the establishment of the new ecclesiastical commission.

The kings of England, if not immemorially, yet from a very early æra in our records, had exercised a prerogative unquestioned by parliament, and recognised by courts of justice, that of granting dispensations from the prohibitions and penalties of particular laws. The language of ancient statutes was usually brief and careless, with few of those attempts to regulate prospective contingencies, which, even with our pretended modern caution, are so often imperfect; and, as the sessions were never regular, sometimes interrupted for several years, there was a kind of necessity, or great convenience, in deviating occasionally from the rigour of a general prohibition; more often perhaps some motive of interest or partiality would induce the Crown to infringe on the legal rule. This dispensing power, however, grew up, as it were, collaterally to the sovereignty of the legislature, which it sometimes appeared to overshadow. It was of course asserted in large terms by counsellors of state, and too frequently by the interpreters of law. Lord Coke, before he had learned the bolder tone of his declining years, lays it down, that no act of parliament can bind the king from any prerogative which is inseparable from his person, so that he may not dispense with it by a non-obtante; such is his sovereign power to command any of his subjects to serve him for the public weal, which solely and inseparably is annexed to his person, and cannot be restrained by any act of parliament. Thus, although the statute 23 H. 6, c. 8, provides that all patents to hold the office of sheriff for more than one year shall be void, and even enacts that the king shall not dispense with it; yet it was held by all the judges in the reign of Henry VII. that the king may grant such a patent for a longer term on good grounds, whereof he alone is the judge. So also the statutes which restrain the king from granting pardons in case of murder have been held void; and doubtless the constant practice has been to disregard them.[94]

This high and dangerous prerogative, nevertheless, was subject to several limitations, which none but the grosser flatterers of monarchy could deny. It was agreed among lawyers that the king could not dispense with the common law, nor with any statute prohibiting that which was malum in se, nor with any right or interest of a private person, or corporation.[95] The rules, however, were still rather complicated, the boundaries indefinite, and therefore varying according to the political character of the judges. For many years dispensations had been confined to taking away such incapacity as either the statutes of a college, or some law of little consequence, perhaps almost obsolete, might happen to have created. But when a collusive action was brought against Sir Edward Hales, a Roman catholic, in the name of his servant, to recover the penalty of £500 imposed by the test act, for accepting the commission of colonel of a regiment, without the previous qualification of receiving the sacrament in the church of England, the whole importance of the alleged prerogative became visible, and the fate of the established constitution seemed to hang upon the decision. The plaintiff's advocate, Northey, was known to have received his fee from the other side, and was thence suspected, perhaps unfairly, of betraying his own cause;[96] but the chief justice Herbert showed that no arguments against this prerogative would have swayed his determination. Not content with treating the question as one of no difficulty, he grounded his decision in favour of the defendant upon principles that would extend far beyond the immediate case. He laid it down that the kings of England were sovereign princes, that the laws of England were the king's laws; that it was consequently an inseparable prerogative of the Crown to dispense with penal laws in particular cases, for reasons of which it was the sole judge. This he called the ancient remains of the sovereign power and prerogative of the kings of England, which never yet was taken from them, nor could be. There was no law, he said, that might not be dispensed with by the supreme lawgiver (meaning evidently the king, since the proposition would otherwise be impertinent); though he made a sort of distinction as to those which affected the subject's private right. But the general maxims of slavish churchmen and lawyers were asserted so broadly that a future judge would find little difficulty in making use of this precedent to justify any stretch of arbitrary power.[97]

It is by no means evident that the decision in this particular case of Hales, which had the approbation of eleven judges out of twelve, was against law.[98] The course of former precedents seems rather to furnish its justification. But the less untenable such a judgment in favour of the dispensing power might appear, the more necessity would men of reflection perceive of making some great change in the relations of the people towards their sovereign. A prerogative of setting aside the enactments of parliament, which in trifling matters, and for the sake of conferring a benefit on individuals, might be suffered to exist with little mischief, became intolerable when exercised in contravention of the very principle of those statutes which had been provided for the security of fundamental liberties or institutions. Thus the test act, the great achievement, as it had been reckoned, of the protestant party, for the sake of which the most subservient of parliaments had just then ventured to lose the king's favour, became absolutely nugatory and ineffective, by a construction which the law itself did not reject. Nor was it easy to provide any sufficient remedy by means of parliament; since it was the doctrine of the judges, that the king's inseparable and sovereign prerogatives in matters of government could not be taken away or restrained by statute. The unadvised assertion in a court of justice of this principle, which though not by any means novel, had never been advanced in a business of such universal concern and interest, may be said to have sealed the condemnation of the house of Stuart. It made the co-existence of an hereditary line, claiming a sovereign prerogative paramount to the liberties they had vouchsafed to concede, incompatible with the security or probable duration of those liberties. This incompatibility is the true basis of the revolution in 1688.

But, whatever pretext the custom of centuries or the authority of compliant lawyers might afford for these dispensations from the test, no legal defence could be made for the ecclesiastical commission of 1686. The high commission court of Elizabeth had been altogether taken away by an act of the long parliament, which went on to provide that no new court should be erected with the like power, jurisdiction, and authority. Yet the commission issued by James II. followed very nearly the words of that which had created the original court under Elizabeth, omitting a few particulars of little moment.[99] It is not known, I believe, at whose suggestion the king adopted this measure. The pre-eminence reserved by the commission to Jefferies, whose presence was made necessary to all their meetings, and the violence with which he acted in all their transactions on record, seems to point him out as its great promoter; though it is true that, at a later period, Jefferies seems to have perceived the destructive indiscretion of the popish counsellors. It displayed the king's change of policy and entire separation from that high-church party, to whom he was indebted for the throne; since the manifest design of the ecclesiastical commission was to bridle the clergy, and silence the voice of protestant zeal. The proceedings against the Bishop of London, and other instances of hostility to the established religion, are well known.