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.* 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. 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 "Le Roi d'Angleterre connait bien que les gens mal intentionnés pour lui sont les plus prompts et les plus disposés à donner considérablement. . . . Sa Majesté Britannique connoit bien qu'il auroit été à propos de ne point ordonner de collecte, et que les gens mal intentionnés contre la religion Feb. 22. Barillon, Feb. 1, CHAP. VI. 1686. CHAP. VI. 1686. The dispensing power. 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.* ** May was now approaching; and that month had been fixed for the meeting of the Houses: but they were again prorogued to November. 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 19 * Barillon, April 18. 1686; Lady Russell to Dr. Fitzwilliam, April 14. "He sent away many," she says, "with sad hearts." † London Gazette of May 13. 1686. 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. CHAP. VI. 1686. of re But, though his pretensions were moderate when com- Dismission pared with those which he put forth a few months later, fractory he soon found that he had against him almost the whole Judges. 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 VI. 1686. CHAP. 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."* 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.† 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. 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; * Reresby's Memoirs; Eachard, iii. 797.; Kennet, iii. 451. † London Gazette, April 22. and 29. 1686; Barillon, April 18.; 19 Evelyn's Diary, June 2.; Luttrell, North's Life of Guildford, 288. VI. and I implore your Majesty to consider whether such CHAP. an attack upon the rights of the Church be in accordance with your late gracious promises." * Sawyer 1686. 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 *Reresby's Memoirs. Case of Sir Edward Hales. |