The History of England, from the Accession of James the Second - Volume 2 by Thomas Babington Macaulay (free reads txt) 📕

Jeffreys was startled, and ventured to represent that such a proceeding was without example, that the book was written in a foreign tongue, that it had been printed at a foreign press, that it related entirely to transactions which had taken place in a foreign country, and that no English government had ever animadverted on such works. James would not suffer the question to be discussed. "My resolution," he said, "is taken. It has become the fashion to treat Kings disrespectfully; and they must stand by each other. One King should always take another's part: and I have particular reasons for showing this respect to the King of France." There was silence at the board. The order was forthwith issued; and Claude's pamphlet was committed to the flames, not without the deep murmurs of many who had always been reputed steady loyalists.74

The promised collection was long put off under various pretexts. The King would gladly have broken his word; but it was pledged so solemnly that he could not for very shame retract.75 Nothing, however, which could cool the zeal of congregations was omitted. It had been expected that, according to the practice usual on such occasions, the people would be exhorted to liberality from the pulpits. But James was determined not to tolerate declamations against his religion and his ally. The Archbishop of Canterbury was therefore commanded to inform the clergy that they must merely read the brief, and must not presume to preach on the sufferings of the French Protestants.76 Nevertheless the contributions were so large that, after all deductions, the sum of forty thousand pounds was paid into the Chamber of London. Perhaps none of the munificent subscriptions of our own age has borne so great a proportion to the means of the nation.77

The King was bitterly mortified by the large amount of the collection which had been made in obedience to his own call. He knew, he said, what all this liberality meant. It was mere Whiggish spite to himself and his religion.78 He had already resolved that the money should be of no use to those whom the donors wished to benefit. He had been, during some weeks, in close communication with the French embassy on this subject, and had, with the approbation of the court of Versailles, determined on a course which it is not very easy to reconcile with those principles of toleration to which he afterwards pretended to be attached. The refugees were zealous for the Calvinistic discipline and worship. James therefore gave orders that none should receive a crust of bread or a basket of coals who did not first take the sacrament according to the Anglican ritual.79 It is strange that this inhospitable rule should have been devised by a prince who affected to consider the Test Act as an outrage on the rights of conscience: for, however unjustifiable it may be to establish a sacramental test for the purpose of ascertaining whether men are fit for civil and military office, it is surely much more unjustifiable to establish a sacramental test for the purpose of ascertaining whether, in their extreme distress, they are fit objects of charity. Nor had James the plea which may be urged in extenuation of the guilt of almost all other persecutors: for the religion which he commanded the refugees to profess, on pain of being left to starve, was not his own religion. His conduct towards them was therefore less excusable than that of Lewis: for Lewis oppressed them in the hope of bringing them over from a damnable heresy to the true Church: James oppressed them only for the purpose of forcing them to apostatize from one damnable heresy to another.

Several Commissioners, of whom the Chancellor was one, had been appointed to dispense the public alms. When they met for the first time, Jeffreys announced the royal pleasure. The refugees, he said, were too generally enemies of monarchy and episcopacy. If they wished for relief, they must become members of the Church of England, and must take the sacrament from the hands of his chaplain. Many exiles, who had come full of gratitude and hope to apply for succour, heard their sentence, and went brokenhearted away.80

May was now approaching; and that month had been fixed for the meeting of the Houses: but they were again prorogued to November.81 It was not strange that the King did not wish to meet them: for he had determined to adopt a policy which he knew to be, in the highest degree, odious to them. From his predecessors he had inherited two prerogatives, of which the limits had never been defined with strict accuracy, and which, if exerted without any limit, would of themselves have sufficed to overturn the whole polity of the State and of the Church. These were the dispensing power and the ecclesiastical supremacy. By means of the dispensing power the King purposed to admit Roman Catholics, not merely to civil and military, but to spiritual, offices. By means of the ecclesiastical supremacy he hoped to make the Anglican clergy his instruments for the destruction of their own religion.

This scheme developed itself by degrees. It was not thought safe to begin by granting to the whole Roman Catholic body a dispensation from all statutes imposing penalties and tests. For nothing was more fully established than that such a dispensation was illegal. The Cabal had, in 1672, put forth a general Declaration of Indulgence. The Commons, as soon as they met, had protested against it. Charles the Second had ordered it to be cancelled in his presence, and had, both by his own mouth and by a written message, assured the Houses that the step which had caused so much complaint should never be drawn into precedent. It would have been difficult to find in all the Inns of Court a barrister of reputation to argue in defence of a prerogative which the Sovereign, seated on his throne in full Parliament, had solemnly renounced a few years before. But it was not quite so clear that the King might not, on special grounds, grant exemptions to individuals by name. The first object of James, therefore, was to obtain from the courts of common law an acknowledgment that, to this extent at least, he possessed the dispensing power.

But, though his pretensions were moderate when compared with those which he put forth a few months later, he soon found that he had against him almost the whole sense of Westminster Hall. Four of the Judges gave him to understand that they could not, on this occasion, serve his purpose; and it is remarkable that all the four were violent Tories, and that among them were men who had accompanied Jeffreys on the Bloody Circuit, and who had consented to the death of Cornish and of Elizabeth Gaunt. Jones, the Chief Justice of the Common Pleas, a man who had never before shrunk from any drudgery, however cruel or servile, now held in the royal closet language which might have become the lips of the purest magistrates in our history. He was plainly told that he must either give up his opinion or his place. "For my place," he answered, "I care little. I am old and worn out in the service of the crown; but I am mortified to find that your Majesty thinks me capable of giving a judgment which none but an ignorant or a dishonest man could give." "I am determined," said the King, "to have twelve Judges who will be all of my mind as to this matter." "Your Majesty," answered Jones, "may find twelve Judges of your mind, but hardly twelve lawyers."82 He was dismissed together with Montague, Chief Baron of the Exchequer, and two puisne Judges, Neville and Charlton. One of the new Judges was Christopher Milton, younger brother of the great poet. Of Christopher little is known except that, in the time of the civil war, he had been a Royalist, and that he now, in his old age, leaned towards Popery. It does not appear that he was ever formally reconciled to the Church of Rome: but he certainly had scruples about communicating with the Church of England, and had therefore a strong interest in supporting the dispensing power.83

The King found his counsel as refractory as his Judges. The first barrister who learned that he was expected to defend the dispensing power was the Solicitor General, Heneage Finch. He peremptorily refused, and was turned out of office on the following day.84 The Attorney General, Sawyer, was ordered to draw warrants authorising members of the Church of Rome to hold benefices belonging to the Church of England. Sawyer had been deeply concerned in some of the harshest and most unjustifiable prosecutions of that age; and the Whigs abhorred him as a man stained with the blood of Russell and Sidney: but on this occasion he showed no want of honesty or of resolution. "Sir," said he, "this is not merely to dispense with a statute; it is to annul the whole statute law from the accession of Elizabeth to this day. I dare not do it; and I implore your Majesty to consider whether such an attack upon the rights of the Church be in accordance with your late gracious promises."85 Sawyer would have been instantly dismissed as Finch had been, if the government could have found a successor: but this was no easy matter. It was necessary for the protection of the rights of the crown that one at least of the crown lawyers should be a man of learning, ability, and experience; and no such man was willing to defend the dispensing power. The Attorney General was therefore permitted to retain his place during some months. Thomas Powis, an insignificant man, who had no qualification for high employment except servility, was appointed Solicitor.

The preliminary arrangements were now complete. There was a Solicitor General to argue for the dispensing power, and twelve Judges to decide in favour of it. The question was therefore speedily brought to a hearing. Sir Edward Hales, a gentleman of Kent, had been converted to Popery in days when it was not safe for any man of note openly to declare himself a Papist. He had kept his secret, and, when questioned, had affirmed that he was a Protestant with a solemnity which did little credit to his principles. When James had ascended the throne, disguise was no longer necessary. Sir Edward publicly apostatized, and was rewarded with the command of a regiment of foot. He had held his commission more than three months without taking the sacrament. He was therefore liable to a penalty of five hundred pounds, which an informer might recover by action of debt. A menial servant was employed to bring a suit for this sum in the Court of King's Bench. Sir Edward did not dispute the facts alleged against him, but pleaded that he had letters patent authorising him to hold his commission notwithstanding the Test Act. The plaintiff demurred, that is to say, admitted Sir Edward's plea to be true in fact, but denied that it was a sufficient answer. Thus was raised a simple issue of law to be decided by the court. A barrister, who was notoriously a tool of the government, appeared for the mock plaintiff, and made some feeble objections to the defendant's plea. The new Solicitor General replied. The Attorney General took no part in the proceedings. Judgment was given by the Lord Chief Justice, Sir Edward Herbert. He announced that he had submitted the question to all the twelve Judges, and that, in the opinion of eleven of them, the King might lawfully dispense with penal statutes in particular cases, and for special reasons of grave importance. The single dissentient, Baron Street, was not removed from his place. He was a man of morals so bad