[1] It was said in 18 Car. II. (1666) that "the king by the common law hath a general prerogative over the printing press; so that none ought to print a book for public use without his license." This seems, however, to have been in the argument of counsel; but the court held that a patent to print law-books exclusively was no monopoly. Carter's Reports, 89. "Matters of state and things that concern the government," it is said in another case, "were never left to any man's liberty to print that would." 1 Mod. Reps. 258. Kennet informs us that several complaints having been made, of Lilly's Grammar, the use of which had been prescribed by the royal ecclesiastical supremacy, it was thought proper in 1664 that a new public form of grammar should be drawn up and approved in convocation, to be enjoined by the royal authority. One was accordingly brought in by Bishop Pearson, but the matter dropped. Life of Charles II. 274.
[2] We find an order of council, June 7, 1660, that the stationers' company do seize and deliver to the secretary of state all copies of Buchanan's History of Scotland, and De Jure Regni apud Scotos, "which are very pernicious to monarchy, and injurious to his majesty's blessed progenitors." Kennet's Register, 176. This was beginning early.
[3] Commons' Journals, July 29, 1661.
[4] 14 Car. II. c. 33.
[5] State Trials, vii. 929.
[6] This declaration of the judges is recorded in the following passage of the London Gazette, May 5, 1680: "This day the judges made their report to his majesty in council, in pursuance of an order of this board, by which they unanimously declare that his majesty may by law prohibit the printing and publishing of all news-books and pamphlets of news whatsoever not licensed by his majesty's authority, as manifestly tending to the breach of the peace and disturbance of the kingdom. Whereupon his majesty was pleased to direct a proclamation to be prepared for the restraining the printing of news-books and pamphlets of news without leave." Accordingly such a proclamation appears in the Gazette of May 17.
[7] State Trials, vii. 1127; viii. 184, 197. Even North seems to admit that this was a stretch of power. Examen, 564.
[8] State Trials, viii. 163.
[9] It seems that these warrants, though usual, were known to be against the law. State Trials, vii. 949, 956. Possibly they might have been justified under the words of the licensing act, while that was in force; and having been thus introduced, were not laid aside.
[10] Kennet's Charles II. 277.
[11] State Trials, vi. 837.
[12] Ralph, 297; North's Examen, 139; Kennet, 337. Hume of course pretends that this proclamation would have been reckoned legal in former times.
[13] "Sir Hugh Wyndham and others of the grand jury of Somerset were at the last assizes bound over, by Lord Ch. J. Keeling, to appear at the K. B. the first day of this term, to answer a misdemeanour for finding upon a bill of murder, 'billa vera quoad manslaughter,' against the directions of the judge. Upon their appearance they were told by the court, being full, that it was a misdemeanour in them, for they are not to distinguish betwixt murder and manslaughter; for it is only the circumstance of malice which makes the difference, and that may be implied by the law, without any fact at all, and so it lies not in the judgment of a jury, but of the judge; that the intention of their finding indictments is, that there might be no malicious prosecution; and therefore, if the matter of the indictment be not framed of malice, but is verisimilis, though it be not vera, yet it answers their oaths to present it. Twisden said he had known petty juries punished in my lord Chief Justice Hyde's time, for disobeying of the judge's directions in point of law. But, because it was a mistake in their judgments rather than any obstinacy, the court discharged them without any fine or other attendance." Pasch. 19 Car. 2; Keeling; Ch. J. Twisden, Wyndham, Morton, justices; Hargrave MSS. n. 339.
[14] Journals, 16th Oct. 1667.
[15] State Trials, vi. 967.
[16] Vaughan's Reports; State Trials, v. 999.
[17] See Hargraves' judicious observations on the province of juries. State Trials, vi. 1013.
[18] Those who were confined by warrants were forced to buy their liberty of the courtiers; "Which," says Pepys (July 7, 1667), "is a most lamentable thing that we do professedly own that we do these things, not for right and justice' sake, but only to gratify this or that person about the king."
[19] State Trials, vi. 1189.
[20] Commons' Journals. As the titles only of these bills are entered in the Journals, their purport cannot be stated with absolute certainty. They might, however, I suppose, be found in some of the offices.
[21] Parl. Hist. 661. It was opposed by the court.
[22] In this session (Feb. 14) a committee was appointed to inspect the laws, and consider how the king may commit any subject by his immediate warrant, as the law now stands, and report the same to the house, and also how the law now stands touching commitments of persons by the council-table. Ralph supposes (p. 255) that this gave rise to the habeas corpus act, which is certainly not the case. The statute 16 Car. I, c. 10, seems to recognise the legality of commitments by the king's special warrant, or by the privy council, or some, at least, of its members singly; and I do not know whether this, with long usage, is not sufficient to support the controverted authority of the secretary of state. As to the privy council, it is not doubted, I believe, that they may commit. But it has been held, even in the worst of times, that a warrant of commitment under the king's own hand, without seal, or the hand of any secretary, or officer of state, or justice, is bad. 2 Jac. II. B. R. 2 Shower, 484.
[23] In the Parliamentary History, 845, we find a debate on the petition of one Harrington to the Commons in 1677, who had been committed to close custody by the council. But as his demeanour was alleged to have been disrespectful, and the right of the council to commit was not disputed, and especially as he seems to have been at liberty when the debate took place, no proceedings ensued; though the commitment had not been altogether regular. Ralph (p. 314) comments more severely on the behaviour of the house than was necessary.
[24] 31 Car. II. c. 2.
[25] The puisne judges of the common pleas granted a habeas corpus, against the opinion of Chief-Justice Vaughan, who denied the court to have that power. Carter's Reports, 221.
[26] The court of King's Bench directed a habeas corpus to the governor of Jersey, to bring up the body of Overton, a well-known officer of the commonwealth, who had been confined there several years. Siderfin's Reports, 386. This was in 1668, after the fall of Clarendon, when a less despotic system was introduced.
[27] See the Lords' questions and answers of the judges in Parl. Hist. xv. 898; or Bacon's Abridgment, tit. Habeas Corpus; also Wilmot's Judgments, 81. This arose out of a case of impressment, where the expeditious remedy of habeas corpus is eminently necessary.
[28] 56 G. III. c. 100.
[29] It was ordered 21 Jan. 1549, that the eldest son of the Earl of Bedford should continue in the house after his father had succeeded to the peerage. And, 9th Feb. 1575, that his son should do so, "according to the precedent in the like case of the now earl his father." It is worthy of notice that this determination, which, at the time, seems to have been thought doubtful, though very unreasonably (Journals, 10th Feb.), but which has had an influence which no one can fail to acknowledge, in binding together the two branches of the legislature, and in keeping alive the sympathy for public and popular rights in the English nobility (that sensus communis, which the poet thought so rare in high rank) is first recorded, and that twice over, in behalf of a family, in whom the love of constitutional freedom has become hereditary, and who may be justly said to have deserved, like the Valerii at Rome, the surname of Publicolæ.
[30] The form of appointing receivers and tryers of petitions, though intermitted during the reign of William III. was revived afterwards, and finally not discontinued without a debate in the House of Lords, and a division, in 1740. Parl. Hist. xi. 1013.
[31] Hargrave, p. 60. The proofs are in the Lords' Journals.
[32] They were very rare after the accession of Henry V.; but one occurs in 10th Hen. VI. 1432, with which Hale's list concludes. Hargrave's Preface to Hale, p. 7. This editor justly observes, that the incomplete state of the votes and early journals renders the negative proof inconclusive; though we may be fully warranted in asserting that from Henry V. to James I. there was very little exercise of judicial power in parliament, either civilly or criminally.
[33] 27th Eliz. c. 8.
[34] Lords' Journals, May 18, 1660.
[35] Commons' Journals, May 22.
[36] Lords' Journals, June 4, 6, 14, 20, 22 et alibi sæpe. "Upon information given that some person in the late times had carried away goods from the house of the Earl of Northampton, leave was given to the said earl, by his servants and agents, to make diligent and narrow search in the dwelling-houses of certain persons, and to break open any door or trunk that shall not be opened in obedience to the order." June 26. The like order was made next day for the Marquis of Winchester, the Earls of Derby and Newport, etc. A still more extraordinary vote was passed August 16. Lord Mohun having complained of one Keigwin, and his attorney Danby, for suing him by common process in Michaelmas term, 1651, in breach of privilege of peerage, the house voted that he should have damages: nothing could be more scandalously unjust, and against the spirit of the bill of indemnity. Three presbyterian peer protested.
[37] They resolved, in the case of the Earl of Pembroke, Jan. 30, 1678, that the single testimony of a commoner is not sufficient against a peer.
[38] Journals, Aug. 2 and 15, 1660.
[39] Id. July 29, 1661.
[40] Id. Oct. 31, 1665.
[41] For the whole of this business, which is erased from the journals of both houses, see State Trials, v. 711; Parl. Hist. iv. 431, 443; Hatsell's Precedents, iii. 336; and Hargrave's Preface to Hale's Jurisdiction of the Lords, 101.
[42] Hale says, "I could never get to any precedent of greater antiquity than 3 Car. I. nay scarce before 16 Car. I. of any such proceeding in the Lords' house." C. 33, and see Hargrave's Preface, 53.
[43] Id. c. 31.
[44] It was ordered in a petition of Robert Roberts, Esq., that directions be given to the lord chancellor that he proceed to make a speedy decree in the court of chancery, according to equity and justice, notwithstanding there be not any precedent in the case. Against this Lords Mohun and Lincoln severally protested; the latter very sensibly observing, that whereas it hath been the prudence and care of former parliaments to set limits and bounds to the jurisdiction of chancery, now this order of directions, which implies a command, opens a gap to set up an arbitrary power in the chancery, which is hereby countenanced by the House of Lords to act, not according to the accustomed rules or former precedents of that court, but according to his own will. Lords' Journals, 29th Nov. 1664.
[45] It was thrown out against them by the Commons in their angry conferences about the business of Ashby and White, in 1704, but not with any serious intention of opposition.
[46] C. J. May 30.
[47] Id. Nov. 19. Several divisions took place in the course of this business, and some rather close; the court endeavouring to allay the fire. The vote to take Sergeant Pemberton into custody for appearing as counsel at the Lords' bar was only carried by 154 to 146, on June 1.
[48] Lords' Journals, Nov. 20.
[49] Lords' and Commons' Journals, May and November 1675; Parl. Hist. 721, 791; State Trials, vi. 1121; Hargrave's Preface to Hale, 135; and Hale's Treatise, c. 33.
It may be observed, that the Lords learned a little caution in this affair. An appeal of one Cottington from the court of delegates to their house was rejected, by a vote that it did not properly belong to them, Shaftesbury alone dissentient. June 17, 1678. Yet they had asserted their right to receive appeals from inferior courts, that there might be no failure of justice, in terms large enough to embrace the ecclesiastical jurisdiction. May 6, 1675. And it is said that they actually had done so in 1628. Hargrave, 53.
[50] Parl. Hist. ii. 148.
[51] Id. 200.
[52] Id. 300 (43 Edw. 3).
[53] Rot. Parl. iii. 611; View of Middle Ages, ii. 310.
[54] 14 E. 3, stat. 1, c. 21. This statute is remarkable for a promise of the Lords not to assent in future to any charge beyond the old custom, without assent of the Commons in full parliament. Stat. 2, same year; the king promises to lay on no charge but by assent of the Lords and Commons. 18 E. 3, stat. 2, c. 1; the Commons grant two-fifteenths of the commonalty, and two-tenths of the cities and boroughs. "Et en cas que notre signeur le roi passe la mer, de paier a mesmes les tems les quinzisme et disme del second an, et nemy en autre maniere. Issint que les deniers de ce levez soient despendus, en les besoignes a eux monstez a cest parlement, par avis des grauntz a ce assignez, et que les aides de la Trent soient mys en defense de north." This is a remarkable precedent for the usage of appropriation, which had escaped me, though I have elsewhere quoted that in 5 Rich. 2, stat. 2, c. 2 and 3. In two or three instances, we find grants of tenths and fifteenths in the statutes, without any other matter, as 14 E. 3, stat. 1, c. 20; 27 E. 3, stat. 1, c. 4.
[55] 7 H. 7, c. 11; 12 H. 7, c. 12.
[56] I find only one exception, 5 H. 8, c. 17, which was in the now common form: Be it enacted by the king our sovereign lord, and by the assent, etc.
[57] In 37 H. 8, c. 25, both Lords and Commons are said to grant, and they pray that their grant "may be ratified and confirmed by his majesty's royal assent, so to be enacted and authorised by virtue of this present parliament as in such cases heretofore has been accustomed."
[58] Commons' Journals, 24, 29 July; Lords' Journals, 30 July.
[59] They expressed this with strange latitude in a resolution some years after, that all aids and supplies to his majesty in parliament are the sole gift of the Commons. Parl. Hist. 1005. As they did not mean to deny that the Lords must concur in the bill, much less that they must pay their quota, this language seems indefensible.
[60] Lords' and Commons' Journals, April 17th and 22nd, 1679; Parl. Hist. iv. 480; Hatsell's Precedents, iii. 109, 368, 409.
In a pamphlet by Lord Anglesea, if I mistake not, entitled, "Case stated of the Jurisdiction of the House of Lords in point of Impositions," 1696, a vigorous and learned defence of the right of the Lords to make alterations in money-bills, it is admitted that they cannot increase the rates; since that would be to originate a charge on the people, which they cannot do. But it is even said in the year-book (33 H. 6) that if the Commons grant tonnage for four years, and the Lords reduce the terms to two years, they need not send the bill down again. This of course could not be supported in modern times.
[61] Parl. Hist. ii. 563.
[62] The principles laid down by Hatsell are: 1. That in bills of supply, the Lords can make no alteration but to correct verbal mistakes. 2. That in bills, not of absolute supply, yet imposing burthens, as turnpike acts, etc., the Lords cannot alter the quantum of the toll, the persons to manage it, etc.; but in other clauses they may make amendments. 3. That, where a charge may indirectly be thrown on the people by a bill, the Commons object to the Lords making amendments. 4. That the Lords cannot insert pecuniary penalties in a bill, or alter those inserted by the Commons, iii. 137. He seems to boast that the Lords during the last century have very faintly opposed the claim of the Commons. But surely they have sometimes done so in practice, by returning a money-bill, or what the lower house call one, amended; and the Commons have had recourse to the evasion of throwing out such bill and bringing in another with the amendments inserted in it; which does not look very triumphant.
[63] The last instance mentioned by Hatsell is in 1790, when the Lords had amended a bill for regulating Warwick gaol by changing the rate to be imposed from the landowners to the occupiers, iii. 131. I am not at present aware of any subsequent case, but rather suspect that such might be found.
[64] See the case of the Earl of Arundel in parliament in 1626. In one instance the house took notice that a writ of summons had been issued to the Earl of Mulgrave, he being under age, and addressed the king that he would be pleased to be sparing of writs of this nature for the future. 20th Oct. 1667. The king made an excuse that he did not know the earl was much under age, and would be careful for the future. 29th Oct.
[65] Though the proposition in the text is, I believe, generally true, it has occurred to me since, that there are some exceptions in the northern parts of England; and that both Sheffield and Manchester are among them.
[66] It is doubted by Mr. Merewether (arguendo) whether Edward and Mary created so many new boroughs as appears; because the returns under Henry VII. and Henry VIII. are lost. But the motive operated more strongly in the latter reigns. West Looe Case, 80.
[67] 25 Car. 2, c. 9. A bill had passed the Commons in 1624 for the same effect, but failed through the dissolution.
[68] Journals, 26th Feb. and 20th March 1676-7.
[69] Madox Firma, Burgi, p. 270 et post.
[70] The popular character of the elective franchise in early times has been maintained by two writers of considerable research and ability; Mr. Luders, Reports of Election Cases, and Mr. Merewether, in his Sketch of the History of Boroughs and Report of the West Looe Case. The former writer has the following observations, vol. i. p. 99: "The ancient history of boroughs does not confirm the opinion above referred to, which Lord Chief Justice Holt delivered in the case of Ashby v. White; viz. that inhabitants not incorporated cannot send members to parliament but by prescription. For there is good reason to believe that the elections in boroughs were in the beginning of representation popular; yet in the reign of Edward I. there were not perhaps thirty corporations in the kingdom. Who then elected the members of boroughs not incorporated? Plainly, the inhabitants or burghers [according to their tenure or situation]; for at that time every inhabitant of a borough was called a burgess; and Hobart refers to this usage in support of his opinion in the case of Dungannon. The manner in which they exercised this right was the same as that in which the inhabitants of a town, at this day, hold a right of common, or other such privilege, which many possess who are not incorporated." The words in brackets, which are not in the printed edition, are inserted by the author himself in a copy bequeathed to the Inner Temple library. The remainder of Mr. Luders's note, though too long for this place, is very good, and successfully repels the corporate theory.
[71] The following passage from Vowell's treatise, on the order of the parliament, published in 1571, and reprinted in Holingshed's Chronicles of Ireland (vi. 345) seems to indicate that, at least in practice, the election was in the principal or governing body of the corporation. "The sheriff of every county, having received his writ, ought, forthwith, to send his precepts and summons to the mayors, bailiffs, and head officers of every city, town corporate, borough, and such places as have been accustomed to send burgesses within his county, that they do choose and elect among themselves two citizens for every city, and two burgesses for every borough, according to their old custom and usage. And these head officers ought then to assemble themselves, and the aldermen and common council of every city or town; and to make choice among themselves of two able and sufficient men of every city or town, to serve for and in the said parliament."
Now, if these expressions are accurate, it certainly seems that, at this period, the great body of freemen or inhabitants were not partakers in the exercise of their franchise. And the following passage, if the reader will turn to it, wherein Vowell adverts to the form of a county election, is so differently worded in respect to the election by the freeholders at large, that we may fairly put a literal construction upon the former. In point of fact, I have little doubt that elections in boroughs were for the most part very closely managed in the sixteenth century, and probably much earlier. This, however, will not by any means decide the question of right. For we know that in the reigns of Henry IV. and Henry V. returns for the great county of York were made by the proxies of a few peers and a few knights; and there is a still more anomalous case in the reign of Elizabeth, when a Lady Packington sealed the indenture for the county of Worcester. Carew's Hist. of Elections, part ii. p. 282. But no one would pretend that the right of election was in these persons, or supposed by any human being to be so.
The difficulty to be got over by those who defend the modern decisions of committees is this. We know that in the reign of Edward I. more than one hundred boroughs made returns to the writ. If most of these were not incorporated, nor had any aldermen, capital burgesses and so forth, by whom were the elections made? Surely by the freeholders, or by the inhabitants. And if they were so made in the reign of Edward I. how has the franchise been restrained afterwards?
[72] 4 Inst. 48; Glanville, pp. 53, 66. That no private agreement, or by-law of the borough, can restrain the right of election, is laid down in the same book. P. 17.
[73] Glanville's case of Bletchingly, p. 33.
[74] This clause in an act imposing severe penalties on bribery, was inserted by the House of Lords with the insidious design of causing the rejection of the whole bill; if the Commons, as might be expected, should resent such an interference with their privileges. The ministry accordingly endeavoured to excite this sentiment; but those who had introduced the bill very wisely thought it better to sacrifice a point of dignity, rather than lose so important a statute. It was, however, only carried by two voices to agree with the amendment. Parl. Hist. viii. 754.
[75] Fox, Appendix, p. 8.
[76] "The legal method," says Burnet, "was to have made entries, and to have taken bonds for those duties to be paid when the parliament should meet and renew the grant." Mr. Onslow remarks on this, that he should have said, the least illegal and the only justifiable method. To which the Oxford editor subjoins that it was the proposal of Lord-Keeper North, while the other, which was adopted, was suggested by Jefferies. This is a mistake. North's proposal was to collect the duties under the proclamation, but to keep them apart from the other revenues in the exchequer until the next session of parliament. There was surely little difference in point of illegality between this and the course adopted. It was alleged that the merchants, who had paid duty, would be injured by a temporary importation duty free; and certainly it was inconvenient to make the revenue dependent on such a contingency as the demise of the Crown. But this neither justifies the proclamation, nor the disgraceful acquiescence of the next parliament in it.
The king was thanked in several addresses for directing the customs to be levied, particularly in one from the benchers and barristers of the Middle Temple. London Gazette, March 11. This was drawn by Sir Bartholomew Shower, and presented by Sir Humphrey Mackworth. Life of James, vol. ii. p. 17. The former was active as a lawyer in all the worst measures of these two reigns. Yet, after the revolution, they both became tory patriots, and jealous assertors of freedom against the government of William III. Barillon, however, takes notice that this illegal continuance of the revenue produced much discontent. Fox's Appendix, 39; and Rochester told him that North and Halifax would have urged the king to call a parliament, in order to settle the revenue on a lawful basis, if that resolution had not been taken by himself. Id. p. 20. The king thought it necessary to apologise to Barillon for convoking parliament. Id. p. 18; Dalrymple, p. 100.
[77] Dalrymple, p. 142. The king alludes to this possibility of a limited grant with much resentment and threatening, in his speech on opening the session.
[78] Fox, Appendix, p. 93; Lonsdale, p. 5.
[79] For this curious piece of parliamentary inconsistency, see Reresby's Memoirs, p. 113, and Barillon in the Appendix to Fox, p. 95. "Il s'est passé avant hier une chose de grande conséquence dans la chambre basse: il fut proposé le matin que la chambre se mettoit en comité l'après diner pour considérer la harangue du roy sur l'affaire de la religion, et savoir ce qui devoit être entendu par le terme de religion protestante. La résolution fut prise unanimement, et sans contradiction, de faire une adresse au roy pour le prier de faire une proclamation pour l'exécution des loix contre tous les nonconformistes généralement, c'est-à-dire, contre tous ceux qui ne sont pas ouvertement de l'église Anglicane; cela enferme les presbitériens et tous les sectaires, aussi bien que les catholiques Romains. La malice de cette résolution fut aussitôt reconnu du roy d'Angleterre, et de ses ministres; les principaux de la chambre basse furent mandés, et ceux que sa majesté Britannique croit être dans ses intérêts; il leur fit une réprimande sévère de s'être laissés séduire et entraîner à une résolution si dangereuse et si peu admissible. Il leur déclara que, si l'on persistoit à lui faire une pareille adresse, il répondroit à la chambre basse en termes si décisifs et si fermes qu'on ne retourneroit pas à lui faire une pareille adresse. La manière dont sa majesté Britannique s'explique produisit son effet hier matin; et la chambre basse rejeta tout d'une voix ce que avoit été résolu en comité le jour auparavant."
The only man who behaved with distinguished spirit in this wretched parliament was one in whose political life there is little else to praise, Sir Edward Seymour. He opposed the grant of the revenues for life, and spoke strongly against the illegal practices in the elections. Fox, 90, 93.
[80] Fox, Appendix, p. 156. "Provided always, and be it further enacted, that if any peer of this realm, or member of the House of Commons, shall move or propose in either house of parliament the disherison of the rightful and true heir of the Crown, or to alter or change the descent or succession of the Crown in the right line; such offence shall be deemed and adjudged high treason, and every person being indicted and convicted of such treason, shall be proceeded against, and shall suffer and forfeit as in other cases of high treason mentioned in this act."
See what Lord Lonsdale says (p. 8) of this bill, which he, among others, contrived to weaken by provisoes, so that it was given up.
[81] Parl. Hist. 1372. The king's speech had evidently shown that the supply was only demanded for this purpose. The speaker, on presenting the bill for settling the revenue in the former session, claimed it as a merit that they had not inserted any appropriating clauses. Parl. Hist. 1359.
[82] Reresby, p. 110; Barillon, in Fox's Appendix, pp. 93, 127, etc. Le feu roi d'Angleterre et celui-ci m'ont souvent dit, qu'un gouvernement ne peut subsister avec une telle loi. Dalrymple, p. 171.
[83] This opinion has been well supported by Mr. Serjeant Heywood (Vindication of Mr. Fox's History, p. 154). In some few of Barillon's letters to the King of France, he speaks of James's intention établir la religion catholique; but these perhaps might be explained by a far greater number of passages, where he says only établir le libre exercice de la religion catholique, and by the general tenor of his correspondence. But though the primary object was toleration, I have no doubt but that they conceived this was to end in establishment. See what Barillon says (p. 84); though the legal reasoning is false, as might be expected from a foreigner. It must at all events be admitted that the conduct of the king after the formation of the catholic junto in 1686, demonstrates an intention of overthrowing the Anglican establishment.
[84] "Il [le roy] me répondit à ce que je venois de dire, que je connoissois le fond de ses intentions pour l'établissement de la religion catholique; qu'il n'esperoit en venir à bout que par l'assistance de V. M.; que je voyois qu'il venoit de donner des emplois dans ses troupes aux catholiques aussi bien qu'aux protestans; que cette égalité fâchoit beaucoup de gens, mais qu'il n'avoit pas laissé passer une occasion si importante sans s'en prévaloir; qu'il feroit de même à l'égard des choses practicables, et que je voyois plus clair sur cela dans ses desseins que ses propres ministres, s'en étant souvent ouvert avec moi sans reserve."—P. 104. In a second conversation immediately afterwards, the king repeated, "que je connoissois le fond de ses desseins, et que je pouvois répondre que tout son but étoit d'établir la religion catholique; qu'il ne perdroit aucune occasion de la faire ... que peu à peu il va à son but, et que ce qu'il fait presentement emporte nécessairement l'exercice libre de la religion catholique, qui se trouvera établi avant qu'un acte de parlement l'autorise; que je connoissois assez l'Angleterre pour savoir que la possibilité d'avoir des emplois et des charges fera plus de catholiques que la permission de dire des messes publiques; que cependant il s'attendoit que V. M. ne l'abandonneroit pas," etc. P. 106. Sunderland entered on the same subject, saying, "Je ne sais pas si l'on voit en France les choses comme elles sont ici; mais je défie ceux qui les voyent de près de ne pas connoître que le roy mon maître n'a rien dans le cœur si avant que l'envie d'établir la religion catholique; qu'il ne peut même, selon le bon sens et la droite raison, avoir d'autre but; que sans cela il ne sera jamais en sûreté, et sera toujours exposé au zèle indiscret de ceux qui échaufferont les peuples contre la catholicité, tant qu'elle ne sera pas plus pleinement établie; il y a une autre chose certaine, c'est que ce plan là ne peut réussir que par un concert et une liaison étroite avec le roi votre maître; c'est un projet qui ne peut convenir qu'à lui, ni réussir que par lui. Toutes les autres puissances s'y opposeront ouvertement, ou le traverseront sous main. On sait bien que cela ne convient point au Prince d'Orange; mais s'il ne sera pas en état de l'empêcher si on veut se conduire en France comme il est nécessaire, c'est-à-dire ménager l'amitié du roy d'Angleterre, et le contenir dans son projet. Je vois clairement l'appréhension que beaucoup de gens ont d'une liaison avec la France, et les efforts qu'on fait pour l'affoiblir; mais cela ne sera au pouvoir de personne, si on n'en a pas envie ce France; c'est sur quoi il faut que vous vouz expliquiez nettement, que vous fassiez connoître que le roi votre maître veut aider de bonne foi le roi d'Angleterre à établir fermement la religion catholique."
The word plus in the above passage is not in Dalrymple's extract from this letter. Vol. ii. part ii. pp. 174, 187. Yet for omitting this word Serjeant Heywood (not having attended to Dalrymple), censures Mr. Rose as if it had been done purposely. Vindic. of Fox, p. 154. But this is not quite judicious or equitable, since another critic might suggest that it was purposely interpolated. No one of common candour would suspect this of Mr. Fox; but his copyist, I presume, was not infallible. The word plus is evidently incorrect. The catholic religion was not established at all in any possible sense; what room could there be for the comparative? M. Mazure, who has more lately perused the letters of Barillon at Paris, prints the passage without plus. Hist. de la Révol. ii. 36. Certainly the whole conversation here ascribed to Sunderland points at something far beyond the free exercise of the Roman catholic religion.
[85] It is curious to remark that both James and Louis considered the re-establishment of the catholic religion and of the royal authority as closely connected, and parts of one great system. Barillon in Fox, Append. 19, 57; Mazure, i. 346. Mr. Fox maintains (Hist. p. 102) that the great object of the former was absolute power rather than the interests of popery. Doubtless if James had been a protestant, his encroachments on the rights of his subjects would not have been less than they were, though not exactly of the same nature; but the main object of his reign can hardly be denied to have been either the full toleration, or the national establishment of the church of Rome. Mr. Fox's remark must, at all events, be limited to the year 1685.
[86] Fox, Appendix, p. 33; Ralph, 869. The prosecution of Baxter for what was called reflecting on the bishops, is an instance of this. State Trials, ii. 494. Notwithstanding James's affected zeal for toleration, he did not scruple to congratulate Louis on the success of his very different mode of converting heretics. Yet I rather believe him to have been really averse to persecution; though with true Stuart insincerity he chose to flatter his patron. Dalrymple, p. 177. A book by Claude, published in Holland, entitled Plaintes des Protestans cruellement opprimés dans le royaume de France, was ordered to be burned by the hangman, on the complaint of the French ambassador, and the translator and printer to be enquired after and prosecuted. Lond. Gazette, May 8, 1686. Jefferies objected to this in council as unusual; but the king was determined to gratify his most christian brother. Mazure, ii. 122. It is said also that one of the reasons for the disgrace of Lord Halifax was his speaking warmly about the revocation of the edict of Nantes. Id. p. 55. Yet James sometimes blamed this himself, so as to displease Louis. Id. p. 56. In fact, it very much tended to obstruct his own views for the establishment of a religion which had just shown itself in so odious a form. For this reason, though a brief was read in churches for the sufferers, special directions were given that there should be no sermon. It is even said that he took on himself the distribution of the money collected for the refugees, in order to stop the subscription; or at least that his interference had that effect. The enthusiasm for the French protestants was such that single persons subscribed 500 or 1000 pounds; which, relatively to the opulence of the kingdom, almost equals any munificence of this age. Id. p. 123.
[87] It is well known that the House of Commons, in 1685, would not pass the bill for reversing Lord Stafford's attainder, against which a few peers had entered a very spirited protest. Parl. Hist. 1361. Barillon says, this was "parce que dans le préambule il y a des mots insérés qui semblent favoriser la religion catholique; cela seul a retardé la rehabilitation du Comte de Stafford dont tous sont d'accord à l'égard du fond." Fox, App. p. 110. But there was another reason which might have weight. Stafford had been convicted on the evidence, not only of Oates, who had been lately found guilty of perjury, but of several other witnesses, especially Dugdale and Turberville. And these men had been brought forward by the government against Lord Shaftesbury and College, the latter of whom had been hanged on their testimony. The reversal of Lord Stafford's attainder, just as we now think it, would have been a disgrace to these Crown prosecutions; and a conscientious tory would be loth to vote for it.
[88] "In all the disputes relating to that mystery before the civil wars, the church of England protestant writers owned the real presence, and only abstracted from the modus or manner of Christ's body being present in the eucharist, and therefore durst not say but it might be there by transubstantiation as well as by any other way.... It was only of late years that such principles have crept into the church of England; which, having been blown into the parliament house, had raised continual tumults about religion ever since. Those unlearned and fanatical notions were never heard of till Doctor Stillingfleet's late invention of them, by which he exposed himself to the lash, not only of the Roman catholics, but to that of many of the church of England controvertists too." Life of James, ii. 146.
[89] See London Gazettes, 1685, passim: the most remarkable are inserted by Ralph and Kennet. I am sure the addresses which we have witnessed in this age among a neighbouring people are not on the whole more fulsome and disgraceful. Addresses, however, of all descriptions, as we well know, are generally the composition of some zealous individual, whose expressions are not to be taken as entirely those of the subscribers. Still these are sufficient to manifest the general spirit of the times.
The king's popularity at his accession, which all contemporary writers attest, is strongly expressed by Lord Lonsdale. "The great interest he had in his brother, so that all applications to the king seemed to succeed only as he favoured them, and the general opinion of him to be a prince steady above all others to his word, made him at that time the most popular prince that had been known in England for a long time. And from men's attempting to exclude him, they, at this juncture of time, made him their darling; no more was his religion terrible; his magnanimous courage, and the hardships he had undergone, were the discourse of all men. And some reports of a misunderstanding betwixt the French king and him, occasioned originally by the marriage of the Lady Mary to the Prince of Orange, industriously spread abroad to amuse the ignorant, put men in hopes of what they had long wished; that, by a conjunction of Holland and Spain, etc., we might have been able to reduce France to the terms of the Pyrenean treaty, which was now become the terror of Christendom, we never having had a prince for many ages that had so great a reputation for experience and a martial spirit."—P. 3. This last sentence is a truly amusing contrast to the real truth; James having been, in his brother's reign, the most obsequious and unhesitating servant of the French king.
[90] "On voit qu'insensiblement les Catholiques auront les armes à la main; c'est un état bien différent de l'oppression où ils étoient, et dont les protestans zélés recoivent une grande mortification; ils voyent bien que le roy d'Angleterre fera le reste quand il le pourra. La levée des troupes, qui seront bientot complettes, fait juger que le roy d'Angleterre veut être en état de se faire obéir, et de n'être pas gêné par les loix qui se trouveront contraires à ce qu'il veut établir." Barillon in Fox's Appendix, 111. "Il me paroit (he says, June 25), que le roy d'Angleterre a été fort aisé d'avoir une prétexte de lever des troupes, et qu'il croit que l'entreprise de M. le duc de Monmouth ne servira qu'à le rendre plus maître de sons pays." And on July 30: "le projet du roy d'Angleterre est d'abolir entièrement les milices, dont il a reconnu l'inutilité et le danger en cette dernière occasion; et de faire, s'il est possible, que le parlement établisse le fond destiné pour les milices à l'entretien des troupes réglées. Tout cela change entièrement l'état de ce pays ici, et met les Anglois dans une condition bien différente de celle où ils ont été jusques à present. Ils le connoissent, et voyent bien qu'un roy de différente religion que celle du pays, et qui se trouve armé, ne renoncera pas aisément aux avantages que lui donne la défaite des rebelles, et les troupes qu'il a sur pied." And afterwards: "Le roi d'Angleterre m'a dit que quoiqu'il arrive, il conservera les troupes sur pied, quand même le parlement ne lui donneroit pour les entretenir. Il connoit bien que le parlement verra mal volontiers cet établissement; mais il veut être assuré du dedans de son pays, et il croit ne le pouvoir être sans cela." Dalrymple, 169, 170.
[91] Fox's App. 69; Dalrymple, 153.
[92] It had been the intention of Sunderland and the others to dissolve parliament, as soon as the revenue for life should be settled, and to rely in future on the assistance of France. Fox's App. 59, 60; Mazure, i. 432. But this was prevented, partly by the sudden invasion of Monmouth, which made a new session necessary, and gave hopes of a large supply for the army; and partly by the unwillingness of the King of France to advance as much money as the English government wanted. In fact, the plan of continual prorogations answered as well.
[93] Journals, Nov. 14. Barillon says that the king answered this humble address, "avec des marques de fierté et de colère sur le visage, qui faisoit assez connôitre ses sentimens." Dalrymple, 172. See too his letter in Fox, 139.
A motion was made to ask the Lords' concurrence in this address, which, according to the journals, was lost by 212 to 138. In the Life of James, ii. 55, it is said that it was carried against the motion by only four voices; and this I find confirmed by a manuscript account of the debates (Sloane MSS. 1470), which gives the numbers 212 to 208. The journal probably is mis-printed, as the court and country parties were very equal. It is said in this manuscript, that those who opposed the address, opposed also the motion for requesting the Lords' concurrence in it; but James represents it otherwise, as a device of the court to quash the proceeding.
[94] Coke, 12 Rep. 18.
[95] Vaughan's Reports; Thomas v. Sorrell, 333.
[96] Burnet and others. This hardly appears by Northey's argument.
[97] State Trials, xi. 1165-1280; 2 Shower's Reports, 475.
[98] The dissentient judge was Street; and Powell doubted. The king had privately secured this opinion of the bench in his favour before the action was brought. Life of James, ii. 79.
[99] State Trials, xi. 1132 et seq. The members of the commission were the primate Sancroft (who never sat), Crew and Sprat, Bishops of Durham and Rochester the chancellor Jefferies, the Earls of Rochester and Sunderland, and Chief-Justice Herbert. Three were to form a quorum, but the chancellor necessarily to be one. Ralph, 929. The Earl of Mulgrave was introduced afterwards.
[100] Mazure, ii. 130.
[101] Henry Earl of Clarendon's papers, ii. 278. In Gutch's Collectanea Curiosa, vol. i. p. 287, we find not only this license to Massey, but one to Obadiah Walker, master of University College, and to two fellows of the same, and one of Brazen-nose College, to absent themselves from church, and not to take the oaths of supremacy and allegiance, or do any other thing to which, by the laws and statutes of the realm, or those of the college, they are obliged. There is also, in the same book, a dispensation for one Sclater, curate of Putney, and rector of Esher, from using the common prayer, etc., etc. Id. p. 290. These are in May 1686, and subscribed by Powis, the solicitor-general. The attorney-general, Sawyer, had refused; as we learn from Reresby, p. 133, the only contemporary writer, perhaps, who mentions this very remarkable aggression on the established church.
[102] The catholic lords, according to Barillon, had represented to the king, that nothing could be done with parliament so long as the treasurer caballed against the designs of his majesty. James promised to dismiss him if he did not change his religion. Mazure, ii. 170. The queen had previously been rendered his enemy by the arts of Sunderland, who persuaded her that Lord and Lady Rochester had favoured the king's intimacy with the Countess of Dorchester in order to thwart the popish intrigue. Id. 149. "On voit," says Barillon, on the treasurer's dismissal, "que la cabale catholique a entièrement prevalu. On s'attendoit depuis quelque temps à ce qui est arrivé au comte de Rochester; mais l'exécution fait encore une nouvelle impression sur les esprits."—P. 181.
[103] Life of James, 74. Barillon frequently mentions this cabal, as having in effect the whole conduct of affairs in their hands. Sunderland belonged to them; but Jefferies, being reckoned on the protestant side, had, I believe, very little influence for at least the two latter years of the king's reign. "Les affaires de ce pays-ci," says Bonrepos, in 1686, "ne roulent à présent que sur la religion. Le roi est absolument gouverné par les catholiques. My Lord Sunderland ne se maintient que par ceux-ci, et par son dévouement à faire tout ce qu'il croit être agréable sur ce point. Il a le secret des affaires de Rome." Mazure, ii. 124. "On feroit ici," says Barillon, the same year, "ce que on fait en France" [that is, I suppose, dragonner et fusilier les hérétiques] "si l'on pouvoit espérer de réussir."—P. 127.
[104] Rochester makes so very bad a figure in all Barillon's correspondence, that there really seems no want of candour in this supposition. He was evidently the most active co-operator in the connection of both the brothers with France, and seems to have had as few compunctious visitings, where the church of England was not concerned, as Sunderland himself. Godolphin was too much implicated, at least by acquiescence, in the counsels of this reign; yet we find him suspected of not wishing "se passer entièrement de parlement, et à rompre nettement avec le prince d'Orange." Fox, Append, p. 60.
If Rochester had gone over to the Romanists, many, probably, would have followed: on the other hand, his steadiness retained the wavering. It was one of the first great disappointments with which the king met. But his dismissal from the treasury created a sensible alarm. Dalrymple, 179.
[105] Lord Dartmouth wrote to say that Fletcher told him there were good grounds to suspect that the prince, underhand, encouraged the expedition, with design to ruin the Duke of Monmouth; and this Dalrymple believes. P. 136. It is needless to observe, that such subtle and hazardous policy was totally out of William's character; nor is there much more reason to believe what is insinuated by James himself (Macpherson's Extracts, p. 144; Life of James, ii. 34), that Sunderland had been in secret correspondence with Monmouth; unless indeed it were, as seems hinted in the latter work, with the king's knowledge.
[106] The number of persons who suffered the sentence of the law, in the famous western assize of Jefferies, has been differently stated; but according to a list in the Harleian Collection, n. 4689, it appears to be as follows: at Winchester, one (Mrs. Lisle) executed; at Salisbury, none; at Dorchester, 74 executed, 171 transported; at Exeter, 14 executed, 7 transported; at Taunton, 144 executed, 284 transported; at Wells, 97 executed, 393 transported. In all, 330 executed, 855 transported; besides many that were left in custody for want of evidence. It may be observed, that the prisoners sentenced to transportation appear to have been made over to some gentlemen of interest at court; among others, to Sir Christopher Musgrave, who did not blush to beg the grant of their unfortunate countrymen, to be sold as slaves in the colonies.
The apologists of James II. have endeavoured to lay the entire blame of these cruelties on Jefferies, and to represent the king as ignorant of them. Roger North tells a story of his brother's interference, which is plainly contradicted by known dates, and the falsehood of which throws just suspicion on his numerous anecdotes. See State Trials, xi. 303. But the king speaks with apparent approbation of what he calls Jefferies's campaign, in writing to the Prince of Orange (Dalrymple, 165); and I have heard that there are extant additional proofs of his perfect acquaintance with the details of those assizes; nor, indeed, can he be supposed ignorant of them. Jefferies himself, before his death, declared that he had not been half bloody enough for him by whom he was employed. Burnet, 651 (note to Oxford edition, vol. iii.). The king, or his biographer in his behalf, makes a very awkward apology for the execution of Major Holmes, which is shown by himself to have been a gross breach of faith. Life of James, ii. 43.
It is unnecessary to dwell on what may be found in every history: the trials of Mrs. Lisle, Mrs. Gaunt, and Alderman Cornish; the former before Jefferies, the two latter before Jones, his successor as chief justice of K. B., a judge nearly as infamous as the former, though not altogether so brutal. Both Mrs. Lisle's and Cornish's convictions were without evidence, and consequently were reversed after the revolution. State Trials, vol. xi.
[107] Several proofs of this appear in the correspondence of Barillon. Fox, 135; Mazure, ii. 22. The nuncio, M. d'Adda, was a moderate man, and united with the moderate catholic peers, Bellasis, Arundel, and Powis. Id. 127. This party urged the king to keep on good terms with the Prince of Orange, and to give way about the test. Id. 184, 255. They were disgusted at Father Petre's introduction into the privy council; 308, 353. But it has ever been the misfortune of that respectable body to suffer unjustly for the follies of a few. Barillon admits, very early in James's reign, that many of them disliked the arbitrary proceedings of the court; "ils prétendent être bons Anglois, c'est-à-dire, ne pas désirer que le roi d'Angleterre ôte à la nation ses privilèges et ses libertés." Mazure, i. 404.
William openly declared his willingness to concur in taking off the penal laws, provided the test might remain. Burnet, 694; Dalrymple, 184; Mazure, ii. 216, 250, 346. James replied that he must have all or nothing. Id. 353.
[108] I do not know that this intrigue has been brought to light before the recent valuable publication of M. Mazure, certainly not with such full evidence. See i. 417; ii. 128, 160, 165, 167, 182, 188, 192. Barillon says to his master in one place: "C'est une matière fort délicate à traiter. Je sais pourtant qu'on en parle au roi d'Angleterre; et qu'avec le temps on ne désespère pas de trouver des moyens pour faire passer la couronne sur la tête d'un heritier catholique. Il faut pour cela venir à bout de beaucoup des choses qui ne sont encore que commencées."
[109] Burnet, Dalrymple, Mazure.
[110] The correspondence began by an affectedly obscure letter of Lady Sunderland to the Prince of Orange, dated March 7, 1687. Dalrymple, 187. The meaning, however, cannot be misunderstood. Sunderland himself sent a short letter of compliment by Dykvelt, May 28, referring to what that envoy had to communicate. Churchill, Nottingham, Rochester, Devonshire, and others, wrote also by Dykvelt. Halifax was in correspondence at the end of 1686.
[111] Sunderland does not appear, by the extracts from Barillon's letters published by M. Mazure, to have been the adviser of the king's most injudicious measures. He was united with the queen, who had more moderation than her husband. It is said by Barillon that both he and Petre were against the prosecution of the bishops, ii. 448. The king himself ascribes this step to Jefferies, and seems to glance also at Sunderland as its adviser. Life of James, ii. 156. He speaks more explicitly as to Jefferies in Macpherson's Extracts, 151. Yet Lord Clarendon's Diary, ii. 49, tends to acquit Jefferies. Probably the king had nobody to blame but himself. One cause of Sunderland's continuance in the apparent support of a policy which he knew to be destructive was his poverty. He was in the pay of France, and even importunate for its money. Mazure, 372; Dalrymple, 270 et post. Louis only gave him half what he demanded. Without the blindest submission to the king, he was every moment falling; and this drove him in to a step as injudicious as it was unprincipled, his pretended change of religion, which was not publicly made till June 1688, though he had been privately reconciled, it is said (Mazure, ii. 463) more than a year before by Father Petre.
[112] "This defection of those his majesty had hitherto put the greatest confidence in [Clarendon and Rochester], and the sullen disposition of the church of England party in general, made him think it necessary to reconcile another; and yet he hoped to do it in such a manner as not to disgust quite the church-man neither." Life of James, ii. 102.
[113] London Gazette, March 18, 1687; Ralph, 945.
[114] Ralph, 943; Mazure, ii. 207.
[115] London Gazette, June 9, 1687. Shower had been knighted a little before, on presenting, as recorder of London, an address from the grand jury of Middlesex, thanking the king for his declaration. Id. May 12.
[116] London Gazette of 1687 and 1688, passim; Ralph, 946, 368. These addresses grew more ardent after the queen's pregnancy became known. They were renewed of course, after the birth of the Prince of Wales. But scarce any appear after the expected invasion was announced. The Tories (to whom add the dissenters) seem to have thrown off the mask at once, and deserted the king whom they had so grossly flattered, as instantaneously as parasites on the stage desert their patron on the first tidings of his ruin.
The dissenters have been a little ashamed of their compliance with the declaration, and of their silence in the popish controversy during this reign. Neal, 755, 768; and see Biogr. Brit. art. Alsop. The best excuses are, that they had been so harassed that it was not in human nature to refuse a mitigation of suffering on almost any terms; that they were by no means unanimous in their transitory support of the court; and that they gladly embraced the first offers of an equal indulgence held out to them by the church.