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JAMES II. 1685-1689.

Tampering with the judges.

Dispensing powers of the

crown.

The Anglican

and enabling them to hold their commissions, "any clause in any act of parliament notwithstanding."

As it was requisite to have a legal decision upon the question, the judges were privately consulted, who having, with the exception of four, who were immediately dismissed from office, held the legality of the dispensation, upon the principle that the kings of England were sovereign princes; that the laws of England were the king's laws, and that it was consequently an inseparable prerogative of the crown, to dispense with penal laws in particular cases, and upon necessary occasions, of which necessities and reasons it was the sole judge. A "mock trial" for penalties was had against one of the Roman Catholic officers, and the prerogative publicly allowed'. Although 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, it is questionable whether James did not pos sess the power of dispensation under other circumstances, and which had been claimed and exercised by his predecessors', and parliament had recognised this power, when they enacted the law against aliens in the reign of Henry V., and also when they passed the Statute of Provisors; but it is equally clear that such a power was subversive of the principle upon which legislative authority is established.

The "Test Act," which was now rendered ineffectual, had ever been conceived the great barrier of the established religion under a popish successor: as such it had been 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',-and the people justly thought, that the power of dispensation ought no longer to be entrusted to the

crown.

The clergy having declaimed against the erroneous doctrines clergy silenced. imputed to the Church of Rome, and having exhorted their hearers, in warm language, to a steadfast adhesion to the reformed faith, were ordered by the king, in virtue of his

1 Barillon, Jan. 10, Feb. 25, April 25, May 2, 1687. 8 Lingard, 372. 12 Rep. 18.

7 Parl. Hist. 132. 11 State Trials, 1165-1199. 7 State Trials, 205. 5 State Trials, 171. 12 Rep. 18. 7 Rep. 1-28. Vide etiam Treatises of Sir Edward Herbert, Sir Robert Atkins, and Mr. Atwood. "Rot. Parl. 1 Henry V. n. xv.

Ibid. xxii.

1 Ellis's Corresp. 3, 6. Reresby, 226. 3 Evelyn, 199.

58 Hume, 248.

ecclesiastical supremacy, to lay aside questions of controversy, and to confine their discourses to subjects of moral divinity and of a holy life.

The Dean of Norwich having disobeyed such injunctions, the Bishop of London received orders to suspend him, but his lordship only advised him to remain silent until the king was satisfied with the propriety of his conduct. This disobedience to the royal mandate, served as a pretext for an Ecclesiastical Commission.

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4. The Ecclesiastical Commission.

authority that

was granted to

Elizabeth.

By Stat. 1 Elizabeth, c. 1, the crown had power to appoint Ecclesiastical persons to exercise its ecclesiastical authority, and to visit, redress, correct, and amend all errors, schisms, offences, contempts, and enormities, which by any manner of ecclesiastical power, could be lawfully redressed, corrected, and amended.

Charles I. c. 11.

By 16 Charles I. c. 11, the clause granting that power was Stat. 16 repealed, and all letters patent, erecting new courts, similar to the High Commission Court; and all powers and authorities granted thereby, were declared utterly void and of no effect. But the 13 Charles II. c. 12, while it put down the stat. 13 High Commission Court, with its extraordinary powers of Charles II. c. 12. imposing fines, committing to prison and tendering the oath, ex officio, preserved to the spiritual courts the exercise of their ordinary jurisdiction; and to the crown, that of its ordinary supremacy.

The king, after a consultation with the judges, was by them advised to appoint a standing Court of Delegates, with ordinary powers to hear and determine ecclesiastical causes, and to pronounce on offenders ecclesiastical censures.

Ecclesiastical

But a commission was appointed, by which seven commis- Appointment of sioners were vested with full and unlimited authority over Commissioners, the Church of England. On them were bestowed the same by James II. inquisitorial powers, possessed by the former Court of High Commission': they might proceed upon bare suspicion; and the better to set the law at defiance, it was expressly inserted in their patent, that they were to exercise their jurisdiction, any law or statute to the contrary. The king's design

1 11 State Trials, 1132. Ralph, 929. Vide ante, 393, 442.

JAMES II. 1685-1689.

Citation of the
Bishop of
London.

Reasons which

influenced James

universities.

to subdue the church, was now positively known; and had he been able to establish the authority of this new erected court, his success was certain3.

The Bishop of London having been cited to appear before them, to answer for his contempt in not suspending Dr. Sharpe, they refused to listen to his plea in bar of their jurisdiction; and rejected his absolute right to be tried by the metropolitan and his suffragans. He then alleged that to comply with the royal mandate, by any judicial act, was not in his power, because the offence had never come judicially before him, but that he had complied with it in substance, by advising and inducing Sharpe to abstain from preaching. This not being considered matter of justification, the commissioners suspended his lordship and the dean from their offices.

5. Unconstitutional Exercise of the Prerogative.

The king having encamped an army on Hounslow Heath, to suppress every expression of constitutional feeling, the Roman Catholics were alone intrusted with the offices of state', and, not content with granting dispensations to particular persons, assumed a power of issuing a declaration of general indulgence, and of suspending at once all the penal statutes, by which a conformity was required to the established religion.

From a document, left in the cabinet of James II., it II. to attack the appears that the reduction of the universities was considered of the greatest importance, as being a "formed army against the Roman Catholic church," as it is there stated, "The whole nation seems to attend to these as an example, by which they may safely form their faith: here lies the heat and strength of that great opposition the Catholic truth encounters;" the king therefore left no expedient untried, to introduce the papists, who could only be regarded as the open and avowed enemies of such institutions. The university privileges were unhesitatingly attacked, and public and private property was illegally seques

2 Echard, 1085. 3 Burnet, 153. 1687. 2 Mazure, 130.

38 Hume, 254, 255.

Barillon, April 17, May 12, June 2,

* 8 Lingard, 376.

11 Ellis' Corresp. 149. James' Mem. 74, 77. Barillon, July 22, 29. Nov. 21, 1686.

2

Steph. Corp. Ref. Lond. 1835, 53 et seq. where this document is printed at length.

trated from those who were associated with the universities,because they adhered to their duty, their oaths, and their religion; and it was palpable, that all ecclesiastical, as well as civil preferments, were intended to be bestowed on such as, negligent of honour, virtue, and sincerity, would basely sacrifice their faith to the reigning superstition3.

"

Such was the Constitution," when the parliament assembled, for the last time, on April 28, 1687, and which was shortly afterwards dissolved, the king intimating that he should have a new one before winter. He then resolved upon making a progress through the western counties, which he effected, but was received so coldly as to be disgusted.

JAMES II. 1685-1689.

blished, for the mation of corpo

pretended refor

rate abuse.

When he returned, he resolved to change the magistracy in Board of Reguthe several cities. The "Regulators," a board established lators estaunder the pretext of reforming the abuses in corporations, received orders to mould those bodies in conformity with the views of the court, and instructions were given to the lordlieutenants of counties, to make out lists of persons devoted to the cause, and, on that account, fit to be appointed mayors and sheriffs, so that the returning officers might be in the interest of the crown'; and, secondly, to assemble their deputies and the magistracy, and to put to each individual the three following questions: "If you are chosen to the next parliament, will you vote for the repeal of the Test Act, and of the Penal Laws? Will you give your aid to those candidates who engage to vote for that repeal? Will you support the Declaration for Liberty of Conscience, by living peaceably and like good Christians, with men of different religious principles?" These orders were promptly executed, as evinced by the long list of orders of amotion in the Council Book of this reign, commencing with Chester.

indulgence in

1688.

In 1688, the king published a second declaration of indul- Declaration of gence, very similar to the one that had been issued, commanding it should be read in all the churches, by the officiating clergymen,-thus adding insult to injury.

Some of the bishops, with a spirit worthy of their order,

38 Hume, 264. 8 Lingard, 403. 11 State Trials, 1315-1340. 12 State Trials, 1 & 2 James, 119, 124, 125-127. Hist. Eccles. Com. 25, 3052. Barillon, May 19, 1687. 1 Machp. Papers, 274. 12 State Trials, 54, 55, 69. Kennet, 475. 3 Burnet, 143-150. 3 Dodd, 469. 2 Burnet, 219. 1 Gutch, Col. Cur. 287. Reresby, 133. 2 Clarendon's Papers, 278.

43 Burnet, 183. Kennet, 469, 470. Dalrymple, 223. Lonsdale, 15, 16, 19. Reresby, 251. Bonrepaus, Dec. 4, 1687. Life of James, 139.

JAMES II. 1685-1689.

The bishops, universities, and trial by jury, preserved the constitution.

The people have

forcibly to resist

refused compliance, protesting that the declaration could not be read either in prudence or in conscience: not in prudence, for three reasons; because it was contrary to the interest of the church, because it would be taken as a proof of their approbation or their cowardice, and because it would lead to the reading of other, and perhaps, still more offensive papers; nor could they read it in conscience, because it contained illegal matter, as it presupposed not merely a dispensing, but even a disannulling power in the crown3.

For such refusal and protest, they were summoned to appear before the Privy Council, were committed to the Tower, for publishing a seditious libel, but were acquitted by a jury of their country; and it was the verdict of that jury, combined with the undaunted spirit of the bishops and the universities, that preserved the English Constitution, and roused the nation to inflict a commensurate punishment upon their sovereign, by soliciting the Prince of Orange to assume the reins of government.

6. The Expulsion of James justified.

When James II. violated the fundamental laws of the an inherent right Constitution, executed an avowed system of tyranny, and established slavery as a political, a moral, and a religious obligation, there cannot be a doubt but that the people were entitled to resist his encroachments, and to adopt such precautions as were requisite for the preservation of their liberties.

the illegal encroachments of the crown.

The king and people derive their privileges

from the same source.

In fact, to deny such a proposition would be to maintain that government is intended for those who govern, not for the community at large, and that the general happiness of the human race should be sacrificed to the private interest or caprice of a few individuals.

The statute and the common law are the sources from which alone the king derives his rights; they are the only sources from which the people derive their rights'.

512 State Trials, 453. Clarendon's Diary, 171. 2 James, 152. Kennet, 482, 483. State Tracts, 430. Lonsdale, 26-28. 1 Gutch, 335-338. 6 8 Hume, 269. 8 Lingard, 444.

7 2 James, 158. 12 State Trials, 198, 455-462. 2 Clarend. Corr. 175, 177. App. 481-484.

B

D'Oyly's Life of Sancroft, 250. net, 222-226. 1 Macpherson, 266. 179, 180. Hist. Eccles. Com. 53--60. 1 Bolingbroke's Dissert. on Parties.

12 State Trials, 277-431, 473. 3 Bur2 Ellis Cor. 7-12. Clarend. Diary,

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