The History of England - Vols. 1 to 6 (515 page)

The next opposition came from the house of peers, which has not commonly taken the lead on these occasions; and even from the bench of bishops, where the court usually expects the greatest complaisance and submission. The upper house had been brought, in the first days of the session, to give general thanks for the king’s speech; by which compliment they were understood, according to the practice of that time, to have acquiesced in every part of it: Yet notwithstanding that step, Compton, bishop of London, in his own name and that of his brethren, moved that a day should be appointed for taking the speech into consideration: He was seconded by Halifax, Nottingham, and Mordaunt. Jefferies, the chancellor, opposed the motion; and seemed inclined to use in that house the same arrogance, to which on the bench he had so long been accustomed: But he was soon taught to know his place; and he proved, by his behaviour, that insolence, when checked, naturally sinks into meanness and cowardice. The bishop of London’s motion prevailed.

The king might reasonably have presumed, that, even if the peers should so far resume courage as to make an application against his dispensing power, the same steddy answer, which he had given to the commons, would make them relapse into the same timidity; and he might by that means have obtained a considerable supply, without making any concessions in return. But so imperious was his temper, so lofty the idea which he had entertained of his own authority, and so violent the schemes PLL v6.0 (generated September, 2011)

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suggested by his own bigotry and that of his priests; that, without any delay, without waiting for any farther provocation, he immediately proceeded to a prorogation. He continued the parliament during a year and a half by four more prorogations; but having in vain tried by separate applications, to break the obstinacy of the leading members, he at last dissolved that assembly. And as it was plainly impossible for him to find among his protestant subjects a set of men more devoted to royal authority, it was universally concluded, that he intended thenceforth to govern entirely without parliaments.

Never king mounted the throne of England with greater advantages than James; nay, possessed greater facility, if that were any advantage, of rendering himself and his posterity absolute: But all these fortunate circumstances tended only, by his own misconduct, to bring more sudden ruin upon him. The nation seemed disposed of themselves to resign their liberties, had he not, at the same time, made an attempt upon their religion: And he might even have succeeded in surmounting at once their liberties and religion, had he conducted his schemes with common prudence and discretion. Openly to declare to the parliament, so early in his reign, his intention to dispense with the tests, struck an universal alarm throughout the nation; infused terror into the church, which had hitherto been the chief support of monarchy; and even disgusted the army, by whose means alone he could now purpose to govern. The former horror against popery was revived by polemical books and sermons; and in every dispute the victory seemed to be gained by the protestant divines, who were heard with more favourable ears, and who managed the controversy with more learning and eloquence. But another incident happened at this time, which tended mightily to excite the animosity of the nation against the catholic communion.

Lewis XIV. having long harassed and molested the protestants, at last revoked entirely the edict of Nantz; which had been enacted by Harry IV. for securing them the free exercise of their religion; which had been declared irrevocable; and which during the experience of near a century, had been attended with no sensible inconvenience. All the iniquities, inseparable from persecution, were exercised against those unhappy religionists; who became obstinate in proportion to the oppressions which they suffered, and either covered under a feigned conversion a more violent abhorrence of the catholic communion, or sought among foreign nations for that liberty, of which they were bereaved in their native country. Above half a million of the most useful and industrious subjects deserted France; and exported, together with immense sums of money, those arts and manufactures, which had chiefly tended to enrich that kingdom. They propagated every where the most tragical accounts of the tyranny, exercised against them, and revived among the protestants all that resentment against the bloody and persecuting spirit of popery, to which so many incidents in all ages had given too much foundation. Near fifty thousand refugees passed over into England; and all men were disposed, from their representations, to entertain the utmost horror against the projects, which they apprehended to be formed by the king for the abolition of the protestant religion. When a prince of so much humanity and of such signal prudence as Lewis could be engaged, by the bigotry of his religion alone, without any provocation, to embrace such sanguinary and impolitic measures; what might be dreaded, they asked, from James, who was so much inferior in these virtues, and who had already been irritated by such obstinate and violent PLL v6.0 (generated September, 2011)

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opposition? In vain did the king affect to throw the highest blame on the persecutions in France: In vain did he afford the most real protection and assistance to the distressed Hugonots. All these symptoms of toleration were regarded as insidious; opposite to the avowed principles of his sect, and belied by the severe administration, which he himself had exercised against the nonconformists in Scotland.

The smallest approach towards the introduction of popery, must, 1686.

in the present disposition of the people, have afforded reason of jealousy; much more so wide a step as that of dispensing with the tests, the sole security, which the nation, being disappointed of the exclusion-bill, found provided against those dreaded innovations. Yet was the king resolute to persevere in his purpose; and having failed in bringing over the parliament, he made an attempt, with more success, for establishing his dispensing power, by a verdict of the judges. Sir Edward Hales, a new proselyte, had accepted a commission of colonel; and directions were given his coachman to prosecute him for the penalty of five hundred pounds, which the law, establishing the tests, had granted to informers.

By this feigned action, the king hoped, both from the authority of Dispensing power.

the decision, and the reason of the thing, to put an end to all questions with regard to his dispensing power.

It could not be expected, that the lawyers, appointed to plead against Hales, would exert great force on that occasion: But the cause was regarded with such anxiety by the public, that it has been thoroughly canvassed in several elaborate discourses;
t
and could men divest themselves of prejudice, there want not sufficient materials, on which to form a true judgment. The claim and exercise of the dispensing power is allowed to be very ancient in England; and though it seems at first to have been copied from papal usurpations, it may plainly be traced up as high as the reign of Henry III. In the feudal governments, men were more anxious to secure their private property than to share in the public administration; and provided no innovations were attempted on their rights and possessions, the care of executing the laws, and ensuring general safety was without jealousy entrusted to the sovereign. Penal statutes were commonly intended to arm the prince with more authority for that purpose; and being in the main calculated for promoting his influence as first magistrate, there seemed no danger in allowing him to dispense with their execution, in such particular cases as might require an exception or indulgence. That practice had so much prevailed, that the parliament itself had more than once acknowledged this prerogative of the crown; particularly during the reign of Henry V. when they enacted the law against aliens,
u

and also when they passed the statute of provisors.w
But though the general tenor of the penal statutes was such as gave the king a superior interest in their execution beyond any of his subjects; it could not but sometimes happen in a mixed government, that the parliament would desire to enact laws, by which the regal power, in some particulars, even where private property was not immediately concerned, might be regulated and restrained. In the twenty-third of Henry VI. a law of this kind was enacted, prohibiting any man from serving in a county as sheriff above a year, and a clause was inserted, by which the king was disabled from granting a dispensation. Plain reason might have taught, that this law, at least, should be exempted from the king’s prerogative: But as the dispensing power still prevailed in other cases, it was soon able, aided by the servility of the courts of judicature, even to PLL v6.0 (generated September, 2011)

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overpower this statute, which the legislature had evidently intended to secure against violation. In the reign of Henry VII. the case was brought to a trial before all the judges in the exchequer-chamber; and it was decreed, that, notwithstanding the strict clause abovementioned, the king might dispense with the statute: He could first, it was alleged, dispense with the prohibitory clause, and then with the statute itself. This opinion of the judges, though seemingly absurd, had ever since passed for undoubted law: The practice of continuing the sheriffs had prevailed: And most of the property in England had been fixed by decisions, which juries, returned by such sheriffs, had given in the courts of judicature. Many other dispensations of a like nature may be produced; not only such as took place by intervals, but such as were uniformly continued. Thus the law was dispensed with, which prohibited any man from going a judge of assize into his own county; that which rendered all Welchmen incapable of bearing offices in Wales; and that which required every one, who received a pardon for felony, to find sureties for his good behaviour. In the second of James I. a new consultation of all the judges had been held upon a like question: This prerogative of

the crown was again unanimously affirmed:x
And it became an established principle in English jurisprudence, that, though the king could not allow of what was morally unlawful, he could permit what was only prohibited by positive statute. Even the jealous house of commons, who extorted the petition of right from Charles I. made no scruple, by the mouth of Glanville, their manager, to allow of the dispensing power in its full extent;
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and in the famous trial of ship-money, Holborne, the popular lawyer, had, freely, and in the most explicit terms, made the same concession.
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Sir Edward Coke, the great oracle of English law, had not only concurred with all other lawyers in favour of this prerogative; but seems even to believe it so inherent in the crown, that

an act of parliament itself could not abolish it.a
And he particularly observes, that no law can impose such a disability of enjoying offices as the king may not dispense with; because the king, from the law of nature, has a right to the service of all his subjects. This particular reason, as well as all the general principles, is applicable to the question of the tests; nor can the dangerous consequence of granting dispensations in that case be ever allowed to be pleaded before a court of judicature. Every prerogative of the crown, it may be said, admits of abuse: Should the king pardon all criminals, law must be totally dissolved: Should he declare and continue perpetual war against all nations, inevitable ruin must ensue: Yet these powers are entrusted to the sovereign; and we must be content, as our ancestors were, to depend upon his prudence and discretion in the exercise of them.

Though this reasoning seems founded on such principles as are usually admitted by lawyers, the people had entertained such violent prepossessions against the use, which James here made of his prerogative, that he was obliged, before he brought on Hales’s cause, to displace four of the judges, Jones, Montague, Charleton and Nevil; and even Sir Edward Herbert, the chief justice, though a man of acknowledged virtue, yet, because he here supported the pretensions of the crown, was exposed to great and general reproach. Men deemed a dispensing, to be in effect the same with a repealing power; and they could not conceive, that less authority was necessary to repeal than to enact any statute. If one penal law was dispensed with, any other might undergo the same fate: And by what principle could even the laws, which define property, be afterwards secured from violation? The test act had ever been conceived the great barrier of the established religion under a popish successor: As such it had been PLL v6.0 (generated September, 2011)

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insisted on by the parliament; as such granted by the king; as such, during the debates with regard to the exclusion, recommended by the chancellor. By what magic, what chicane of law, is it now annihilated, and rendered of no validity? These questions were every where asked; and men, straitened by precedents and decisions of great authority, were reduced either to question the antiquity of this prerogative itself, or to assert, that even the practice of near five centuries could not bestow on it sufficient

authority.b
It was not considered, that the present difficulty or seeming absurdity had proceeded from late innovations introduced into the government. Ever since the beginning of this century, the parliament had, with a laudable zeal, been acquiring powers and establishing principles, favourable to law and liberty: The authority of the crown had been limited in many important particulars: And penal statutes were often calculated to secure the constitution against the attempts of ministers, as well as to preserve general peace, and repress crimes and immoralities. A prerogative however, derived from very ancient, and almost uniform practice, the dispensing power, still remained, or was supposed to remain with the crown; sufficient in an instant to overturn this whole fabric, and to throw down all fences of the constitution. If this prerogative, which carries on the face of it, such strong symptoms of an absolute authority in the prince, had yet, in ancient times, subsisted with some degree of liberty in the subject; this fact only proves, that scarcely any human government, much less one erected in rude and barbarous times, is entirely consistent and uniform in all its parts. But to expect, that the dispensing power could, in any degree, be rendered compatible with those accurate and regular limitations, which had of late been established, and which the people were determined to maintain, was a vain hope; and though men knew not upon what principles they could deny that prerogative, they saw, that, if they would preserve their laws and constitution, there was an absolute necessity for denying, at least for abolishing it. The revolution alone, which soon succeeded, happily put an end to all these disputes: By means of it, a more uniform edifice was at last erected: The monstrous inconsistence, so visible between the ancient Gothic parts of the fabric and the recent plans of liberty, was fully corrected: And to their mutual felicity, king and people were finally taught to know their proper