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CHAPTER II. - Sir James Mackintosh, The Miscellaneous Works 
The Miscellaneous Works. Three Volumes, complete in One. (New York: D. Appleton & Co., 1871).
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Dismissal of Halifax.—Meeting of Parliament.—Debates on the Address.—Prorogation of Parliament.—Habeas Corpus Act.—State of the Catholic Party.—Character of the Queen.—Of Catherine Sedley.—Attempt to Support the Dispensing Power by a Judgment of a Court of Law.—Godden V. Hales.—Consideration of the Arguments.—Attack on the Church.—Establishment of the Court of Commissioners for Ecclesiastical Causes.—Advancement of Catholics to Offices.—Intercourse with Rome.
The general appearance of submission which followed the suppression of the revolt, and the punishment of the revolters, encouraged the King to remove from office the Marquis of Halifax, with whose liberal opinions he had recently as well as early been dissatisfied, and whom he suffered to remain in place at his accession, only as an example that old opponents might atone for their of fences by compliance.* A different policy was adopted in a situation of more strength. As the King found that Halifax would not comply with his projects, he determined to dismiss him before the meeting of Parliament;—an act of vigour which it was thought would put an end to division in his councils, and prevent discontented ministers from countenancing a resistance to his measures. When he announced this resolution to Barillon, he added, that “his design was to obtain a repeal of the Test and Habeas Corpus Acts, of which the former was destructive of the Catholic religion, and the other of the royal authority; that Halifax had not the firmness to support the good cause, and that he would have less power of doing harm if he were disgraced”† James had been advised to delay the dismissal till after the session, that the opposition of Halifax might be moderated, if not silenced, by the restraints of high office; but he thought that his authority would be more strengthened, by an example of a determination to keep no terms with any one who did not show an unlimited compliance with his wishes. “I do not suppose,” said the King to Barillon with a smile, “that the King your master will be sorry for the removal of Halifax. I know that it will mortify the ministers of the allies.” Nor was he deceived in either of these respects. The news was received with satisfaction by Louis, and with dismay by the ministers of the Empire, of Spain, and of Holland, who lost their only advocate in the councils of England.‡ It excited wonder and alarm among those Englishmen who were zealously attached to their religion and liberty.§ Though Lord Halifax had no share in the direction of public affairs since the King’s accession, his removal was an important event in the eye of the public, and gave him a popularity which he preserved by independent and steady conduct during the sequel of James’ reign.
It is remarkable that, on the meeting of Parliament (9th November) little notice was taken of the military and judicial excesses in the West. Sir Edward Seymour applauded the punishment of the rebels, and Waller alone, a celebrated wit, an ingenious poet; the father of parliamentary oratory, and one of the refiners of the English language, though now in his eightieth year, arraigned the violence of the soldiers with a spirit still unextinguished. He probably intended to excite a discussion which might gradually have reached the more deliberate and inexcusable faults of the judges. But the opinions and policy of his audience defeated his generous purpose. The prevalent party looked with little disapprobation on severities which fell on Nonconformists and supposed Republicans. Many might be base enough to feel little compassion for sufferers in the humbler classes of society; some were probably silenced by a pusillanimous dread of being said to be the abbettors of rebels; and all must have been, in some measure, influenced by an undue and excessive degree of that wholesome respect for judicial proceed ings, which is one of the characteristic virtues of a free country. This disgraceful silence is, perhaps, somewhat extenuated by the slow circulation of intelligence at that period; by the censorship which imposed silence on the press, or enabled the ruling party to circulate falsehood through its means; and by the eagerness of all parties for a discussion of the alarming tone and principles of the speech from the throne.
The King began his speech by observing that the late events must convince every one that the militia was not sufficient, and that nothing but a good force of well-disciplined troops, in constant pay, could secure the government against enemies abroad and at home; and that for this purpose he had increased their number, and now asked a supply for the great charge of maintaining them. “Let no man take exception,” he continued, “that there are some officers in the army not qualified, according to the late tests, for their employments, the gentlemen are, I must tell you, most of them well known to me; they have approved the loyalty of their principles by their practice: and I will deal plainly with you, that after having had the benefit of their services in such a time of need and danger, I will neither expose them to disgrace, nor myself to the want of them, if there should be another rebellion to make them necessary to me.” Nothing but the firmest reliance on the submissive disposition of the Parliament could have induced James to announce to them his determination to bid defiance to the laws. He probably imagined that the boldness with which he asserted the power of the crown would be applauded by many, and endured by most of the members of such a Parliament. But never was there a more remarkable example of the use of a popular assembly, however ill composed, in extracting from the disunion, jealousy, and ambitition of the victorious enemies of liberty, a new opposition to the dangerous projects of the Crown. The vices of politicians were converted into an imperfect substitute for virtue; and though the friends of the constitution were few and feeble, the inevitable divisions of their opponents in some degree supplied their place.
The disgrace of Lord Halifax disheartened and even offended some supporters of Government. Sir Thomas Clarges, a determined Tory, was displeased at the merited removal of his nephew, the Duke of Albemarle, from the command of the army against Monmouth. Nottingham, a man of talent and ambition, more a Tory than a courtier, was dissatisfied with his own exclusion from office, and jealous of Rochester’s ascendency over the Church party. His relation Finch, though solicitor-general, took a part against the Court. The projects of the Crown were thwarted by the friends of Lord Danby, who had forfeited all hopes of the King’s favour by communicating the Popish Plot to the House of Commons, and by his share in the marriage of the Princess Mary with the Prince of Orange. Had the King’s first attack been made on civil liberty, the Opposition might have been too weak to embolden all these secret and dispersed discontents to display themselves, and to combine together. But the attack on the exclusive privileges of the Church of England, while it alienated the main force of the Crown, touched a point on which all the subdivisions of discontented Tories professed to agree, and afforded them a specious pretext for opposing the King, without seeming to deviate from their ancient principles. They were gradually disposed to seek or accept the assistance of the defeated Whigs, and the names of Sir Richard Temple, Sir John Lowther, Sergeant Maynard, and Mr. Hampden, appear at last more and more often in the proceedings. Thus admirably does a free constitution not only command the constant support of the wise and virtuous, but often compel the low jealousies and mean intrigues of disappointed ambition to contend for its preservation. The consideration of the King’s speech was postponed for three days, in spite of a motion for its immediate consideration by Lord Preston, a secretary of state.
In the committee of the whole House on the speech, which occurred on the 12th, two resolutions were adopted, of which the first was friendly, and the second was adverse, to the Government. It was resolved “that a supply be granted to his Majesty,” and “that a bill be brought in to render the militia more useful.” The first of these propositions has seldom been opposed since the government has become altogether dependent on the annual grants of Parliament; it was more open to debate on a proposal for extraordinary aid, and it gave rise to some important observations. Clarges declared he had voted against the Exclusion, because he did not believe its supporters when they foretold that a Popish king would have a Popish army. “I am afflicted greatly at this breach of our liberties, what is struck at here is our all.” Sir Edward Seymour observed, with truth, that to dispense with the Test was to release the King from all law. Encouraged by the bold language of these Tories, old Serjeant Maynard said, that the supply was asked for the maintenance of an army which was to be officered against a law made, not for the punishment of Papists, but for the defence of Protestants. The accounts of these important debates are so scanty, that we may, without much presumption, suppose the venerable lawyer to have at least alluded to the recent origin of the Test (to which the King had disparagingly adverted in his speech), as the strongest reason for its strict observance. Had it been an ancient law, founded on general considerations of policy, it might have been excusable to relax its rigour from a regard to the circumstances and feelings of the King. But having been recently provided as a security against the specific dangers apprehended from his accession to the throne, it was to the last degree unreasonable to remove or suspend it at the moment when those very dangers had reached their highest pitch. Sir Richard Temple spoke warmly against standing armies, and of the necessity of keeping the Crown dependent on parliamentary grants. He proposed the resolution for the improvement of the militia, with which the courtiers concurred. Clarges moved as an amendment on the vote of supply, the words, for the additional forces,”—to throw odium on the ministerial vote, but this adverse amendment was negatived by a majority of seventy in a house of three hundred and eighty-one. On the 13th, the ministers proposed to instruct the committee of the whole House on the King’s speech, to consider, first, the paragraph of the speech which contained the demand of supply. They were defeated by a majority of a hundred and eighty-three to a hundred and eightytwo, and the committee resolved to take into consideration, first, the succeeding paragraph, which related to the officers illegally employed.* On the 16th, an address was brought up from the committee, setting forth the legal incapacity of the Catholic officers, which could only be removed by an Act of Parliament, offering to indemnify them from the penalties they had incurred, but, as their continuance would be taken to be a dispensing with the law, praying that the King would be pleased not to continue them in their employments. The House, having substituted the milder words, “that he would give such directions therein as that no apprehensions or jealousies might remain in the hearts of his subjects,” unanimously adopted the address. A supply of seven hundred thousand pounds was voted,—a medium between twelve hundred thousand required by ministers, and two hundred thousand proposed by the most rigid of their opponents. The danger of standing armies to liberty, and the wisdom of such limited grants as should compel the Crown to recur soon and often to the House of Commons, were the general arguments used for the smaller sum. The courtiers urged the example of the late revolt, the superiority of disciplined troops over an inexperienced militia, the necessity arising from the like practice of all other states, and the revolution in the art of war, which had rendered proficiency in it unattainable, except by those who studied and practised it as the profession of their lives. The most practical observation was that of Sir William Trumbull, who suggested that the grant should be annual, to make the existence of the army annually dependent on the pleasure of Parliament. The ministers, taking advantage of the secrecy of foreign negotiations, ventured to assert that a formidable army in the hands of the King was the only check on the ambition of France; though they knew that their master was devoted to Louis XIV., to whom he had been recently suing for a secret subsidy in the most abject language of supplication.* When the address was presented, the King answered, with a warmth and anger very unusual on such occasions,† that “he did not expect such an address; that he hoped his reputation would have inspired such a confidence in him; but that, whatever they might do, he should adhere to all his promises.” The reading of this answer in the House the next day produced a profound silence for some minutes. A motion was made by Mr. Wharton to take it into consideration, on which Mr. John Cooke said, “We are Englishmen, and ought not to be frightened from our duty by a few hard words.”‡ Both these gentlemen were Whigs, who were encouraged to speak freely by the symptoms of vigour which the House had shown; but they soon discovered that they had mistaken the temper of their colleagues; for the majority, still faithful to the highest pretensions of the Crown whenever the Established Church was not averse to them, committed Mr. Cooke to the Tower, though he disavowed all disrespectful intention, and begged pardon of the King and the House. Notwithstanding the King’s answer, they proceeded to provide means of raising the supply, and they resumed the consideration of a bill for the naturalisation of French Protestants,—a tolerant measure, the introduction of which the zealous partisans of the Church had, at first, resisted, as they afterwards destroyed the greater part of its benefit by confining it to those who should conform to the Establishment.§ The motion for considering the King’s speech was not pursued, which, together with the proceeding on supply, seemed to imply a submission to the menacing answer of James; arising principally from the subservient character of the majority, but, probably, in some, from a knowledge of the vigorous measures about to be proposed in the House of Lords.
At the opening of the Session, that House had contented themselves with general thanks to the King for his speech, without any allusion to its contents. Jeffreys, in delivering the King’s answer, affected to treat this parliamentary courtesy as an approval of the substance of the speech. Either on that or on the preceding occasion, it was said by Lord Halifax or Lord Devonshire (for it is ascribed to both), “that they had now more reason than ever to give thanks to his Majesty for having dealt so plainly with them.” The House, not called upon to proceed as the other House was by the demand of supply, continued inactive for a few days, till they were roused by the imperious answer of the King to the Commons. On the 19th, the day of that answer, Lord Devonshire moved to take into consideration the dangerous consequences of an army kept up against law. He was supported by Halifax, by Nottingham, and by Anglesea, who, in a very advanced age, still retained that horror of the yoke of Rome, which he had found means to reconcile with frequent acquiescence in the civil policy of Charles and James. Lord Mordaunt, more known as Earl of Peterborough, signalised himself by the youthful spirit of his speech. “Let us not,” he said, “like the House of Commons, speak of jealousy and distrust: ambiguous measures inspire these feelings. What we now see is not ambiguous. A standing army is on foot, filled with officers, who cannot be allowed to serve without overthrowing the laws. To keep up a standing army when there is neither civil nor foreign war, is to establish that arbitrary government which Englishmen hold in such just abhorrence.” Compton, Bishop of London, a prelate of noble birth and military spirit, who had been originally an officer in the Guards, spoke for the motion in the name of all his brethren on the episcopal bench, who considered the security of the Church as involved in the issue of the question. He was influenced not only by the feelings of his order, but by his having been the preceptor of the Princesses Mary and Anne, who were deeply interested in the maintenance of the Protestant Church, as well as conscientiously attached to it. Jeffreys was the principal speaker on the side of the Court. He urged the thanks already voted as an approval of the speech. His scurrilous invectives and the tones and gestures of menace with which he was accustomed to overawe juries, roused the indignation, instead of commanding the acquiescence, of the Lords. As this is a deportment which cuts off all honourable retreat, the contemporary accounts are very probable which represent him as sinking at once from insolence to meanness. His defeat must have been signal; for, in an unusually full House of Lords,* after so violent an opposition by the Chancellor of England, the motion for taking the address into consideration was, on the 23d, carried without a division.†
On the next day the King prorogued the Parliament; which never again was assembled but for the formalities of successive prorogations, by which its legal existence was prolonged for two years. By this act he lost the subsidy of seven hundred thousand pounds: but his situation had become difficult. Though money was employed to corrupt some of the opponents of his measures, the Opposition was daily gaining strength.‡ By rigorous economy, by diverting parliamentary aids from the purposes for which they were granted, the King had the means of maintaining the army, though his ministers had solemnly affirmed that he had not.§ He was full of maxims for the necessity of firmness and the dangers of concession, which were mistaken by others, and perhaps by himself, for proofs of a vigorous character. He had advanced too far to recede with tolerable dignity. The energy manifested by the House of Lords would have compelled even the submissive Commons to co-operate with them, which might have given rise to a more permanent coalition of the High Church party with the friends of liberty. A suggestion had been thrown out in the Lords to desire the opinion of the judges on the right of the King to commission the Catholic officers;∥ and it was feared that the terrors of impeachment might, during the sitting of Parliament, draw an opinion from these magistrates against the prerogative, which might afterwards prove irrevocable. To reconcile Parliament to the officers became daily more hopeless: to sacrifice those who had adhered to the King in a time of need appeared to be an example dangerous to all his projects, whether of enlarging his prerogative, or of securing, and, perhaps, finally establishing, his religion.
Thus ended the active proceedings of a Parliament which, in all that did not concern the Church, justified the most sanguine hopes that James could have formed of their submission to the Court, as well as their attachment to the monarchy. A body of men so subservient as that House of Commons could hardly be brought together by any mode of election or appointment; and James was aware that, by this angry prorogation, he had rendered it difficult for himself for a long time to meet another Parliament. The Session had lasted only eleven days; during which the eyes of Europe had been anxiously turned towards their proceedings. Louis XIV., not entirely relying on the sincerity or steadiness of James, was fearful that he might yield to the Allies or to his people, and instructed Barillon in that case to open a negotiation with leading members of the Commons, that they might embarrass the policy of the King, if it became adverse to France.* Spain and Holland, on the other hand, hoped, that any compromise between the King and Parliament would loosen the ties that bound the former to France. It was even hoped that he might form a triple alliance with Spain and Sweden, and large sums of money were secretly offered to him to obtain his accession to such an alliance.† Three days before the meeting of Parliament, had arrived in London Monsignor D’Adda, a Lombard prelate of distinction, as the known, though then unavowed, minister of the See of Rome,‡ which was divided between the interest of the Catholic Church of England and the animosity of Innocent XI. against Louis XIV. All these solicitudes, and precautions, and expectations, were suddenly dispelled by the unexpected rupture between James and his Parliament.
From the temper and opinions of that Parliament it is reasonable to conclude, that the King would have been more successful if he had chosen to make his first attack on the Habeas Corpus Act, instead of directing it against the Test. Both these laws were then only of a few years’ standing; and he, as well as his brother, held them both in abhorrence. The Test gave exclusive privileges to the Established Church, and was, therefore, dear to the adherents of that powerful body. The Habeas Corpus Act was not then the object of that attachment and veneration which experience of its unspeakable benefits for a hundred and fifty years has since inspired. The most ancient of our fundamental laws had declared the principle that no freeman could be imprisoned without legal authority.* The immemorial antiquity of the writ of Habeas Corpus,—an order of a court of justice to a jailer to bring the body of a prisoner before them, that there might be an opportunity of examining whether his apprehension and detention were legal,—seems to prove that this principal was coeval with the law of England. In irregular times, however, it had been often violated; and the judges under Charles I. pronounced a judgment,† which, if it had not been condemned by the Petition of Right,‡ would have vested in the Crown a legal power of arbitrary imprisonment. By the statute which abolished the Star Chamber, the Parliament of 1641§ made some important provisions to facilitate deliverance from illegal imprisonment. For eleven years Lord Shaftesbury struggled to obtain a law which should complete the securities of personal liberty; and at length that great though not blameless man obtained the object of his labours, and bestowed on his country the most perfect security against arbitrary imprisonment which has ever been enjoyed by any society of men.∥ It has banished that most dangerous of all modes of oppression from England. It has effected that great object as quietly as irresistibly; it has never in a single instance been resisted or evaded, and it must be the model of all nations who aim at securing that personal liberty without which no other liberty can subsist. But in the year 1685, it appeared to the predominant party an odious novelty, an experiment untried in any other nation,—carried through, in a period of popular frenzy, during the short triumph of a faction hostile to Church and State, and by him who was the most obnoxious of all the demagogues of the age. There were then, doubtless, many,—perhaps the majority,—of the partisans of authority who believed, with Charles and James, that to deprive a government of all power to imprison the suspected and the dangerous, unless there was legal ground of charge against them, was incompatible with the peace of society; and this opinion was the more dangerous because it was probably conscientious.¶ In this state of things it may seem singular that James did not first propose the repeal of the Habeas Corpus Act, by which he would have gained the means of silencing opposition to all his other projects. What the fortunate circumstances were which pointed his attack against the Test, we are not enabled by contemporary evidence to ascertain. He contemplated that measure with peculiar resentment, as a personal insult to himself, and as chiefly, if not solely, intended as a safeguard against the dangers apprehended from his succession. He considered it as the most urgent object of his policy to obtain a repeal of it; which would enable him to put the administration, and especially the army, into the hands of those who were devoted by the strongest of all ties to his service, and whose power, honour, and even safety, were involved in his success. An army composed of Catholics must have seemed the most effectual of all the instruments of power in his hands; and it is no wonder that he should hasten to obtain it. Had he been a lukewarm or only a professed Catholic, an armed force, whose interests were the same with his own, might reasonably have been considered as that which it was in the first place necessary to secure. Charles II., with a loose belief in Popery, and no zeal for it, was desirous of strengthening its interests, in order to enlarge his own power. As James was a conscientious and zealous Catholic, it is probable that he was influenced in every measure of his government by religion, as well as ambition. Both these motives coincided in their object: his absolute power was the only security for his religion, and a Catholic army was the most effectual instrument for the establishment of absolute power. In such a case of combined motives, it might have been difficult for himself to determine which predominated on any single occasion. Sunderland, whose sagacity and religious indifference are alike unquestionable, observed to Barillon, that on mere principles of policy James could have no object more at heart than to strengthen the Catholic religion;* —an observation which, as long as the King himself continued to be a Catholic, seems, in the hostile temper which then prevailed among all sects, to have had great weight.
The best reasons for human actions are often not their true motives: but, in spite of the event, it does not seem difficult to defend the determination of the King on those grounds, merely political, which, doubtless, had a considerable share in producing it. It is not easy to ascertain how far his plans in favour of his religion at that time extended. A great division of opinion prevailed among the Catholics themselves on this subject. The most considerable and opulent laymen of that communion, willing to secure moderate advantages, and desirous to employ their superiority with such forbearance as might provoke no new severities under a Protestant successor, would have been content with a repeal of the penal laws, without insisting on an abrogation of the Test. The friends of Spain and Austria, with all the enemies of the French connection, inclined strongly to a policy which, by preventing a rupture between the King and Parliament, might enable, and, perhaps, dispose him to espouse the cause of European independence. The Sovereign Pontiff himself was of this party; and the wary politicians of the court of Rome advised their English friends to calm and slow proceedings: though the Papal minister, with a circumspection and reserve required by the combination of a theological with a diplomatic character, abstained from taking any open part in the division, where it would have been hard for him to escape the imputation of being either a lukewarm Catholic or an imprudent counsellor. The Catholic lords who were ambitious of office, the Jesuits, and especially the King’s confessor, together with all the partisans of France, supported extreme counsels better suited to the temper of James, whose choice of political means was guided by a single maxim,—that violence (which he confounded with vigour) was the only safe policy for an English monarch. Then most specious argument was the necessity of taking such decisive measures to strengthen the Catholics during the King’s life as would effectually secure them against the hostility of his successor.*
The victory gained by this party over the moderate Catholics, as well as the Protestant Tories, was rendered more speedy and decisive by some intrigues of the Court, which have not hitherto been fully known to historians. Mary of Este, the consort of James, was married at the age of fifteen, and had been educated in such gross ignorance, that she never had heard of the name of England until it was made known to her on that occasion. She had been trained to a rigorous observance of all the practices of her religion, which sunk more deeply into her heart, and more constantly influenced her conduct, than was usual among the Italian princesses. On her arrival in England, she betrayed a childish aversion to James, which was quickly converted into passionate fondness. But neither her attachment nor her beauty could fix the heart of that inconstant prince, who reconciled a warm zeal for his religion with an habitual indulgence in those pleasures which it most forbids. Her life was embittered by the triumph of mistresses, and by the frequency of her own perilous and unfruitful pregnancies. Her most formidable rival, at the period of the accession, was Catherine Sedley, a woman of few personal attractions,† who inherited the wit and vivacity of her father, Sir Charles Sedley, which she unsparingly exercised on the priests and opinions of her royal lover. Her character was frank, her deportment bold, and her pleasantries more amusing than refined.* Soon after his accession, James was persuaded to relinquish his intercourse with her; and, though she retained her lodgings in the palace, he did not see her for several months. The connection was then secretly renewed, and, in the first fervour of a revived passion, the King offered to give her the title of Countess of Dorchester. She declined this invidious distinction, assuring him that, by provoking the anger of the Queen and of the Catholics, it would prove her ruin. He, however, insisted; and she yielded, upon condition that, if he was ever again prevailed upon to dissolve their connection, he should come to her to announce his determination in person.† The title produced the effects she had foreseen. Mary, proud of her beauty, still enamoured of her husband, and full of religious horror at the vices of Mrs. Sedley, gave way to the most clamorous excesses of sorrow and anger at the promotion of her competitor. She spoke to the King with a violence for which she long afterwards reproached herself as a grievous fault. At one time she said to him, “Is it possible that you are ready to sacrifice a crown for your faith, and cannot discard a mistress for it? Will you for such a passion lose the merit of your sacrifices?” On another occasion she exclaimed, “Give me my dowry, make her Queen of England, and let me never see her more.”‡ Her transports of grief sometimes betrayed her to foreign ministers; and she neither ate nor spoke with the King at the public dinners of the Court.§ The zeal of the Queen for the Catholic religion, and the profane jests of Lady Dorchester against its doctrines and ministers, had rendered them the leaders of the Popish and Protestant parties at Court. The Queen was supported by the Catholic clergy, who, with whatever indulgence their order had sometimes treated regal frailty, could not remain neuter in a contest between an orthodox Queen and an heretical mistress. These intrigues early mingled with the designs of the two ministers, who still appeared to have equal influence in the royal counsels. Lord Rochester, who had felt the decline of the King’s confidence from the day of Monmouth’s defeat, formed the project of supplanting Lord Sunderland, and of recovering his ascendant in public affairs through the favour of the mistress. Having lived in a court of mistresses, and maintained himself in office by compliance with them,* he thought it unlikely that wherever a favourite mistress existed she could fail to triumph over a queen. As the brother of the first Duchess of York, Mary did not regard him with cordiality: as the leader of the Church party, he was still more obnoxious to her. He and his lady were the principal counsellors of the mistress. They had secretly advised the King to confer on her the title of honour,—probably to excite the Queen to such violence as might widen the rupture between her and the King; and they declared so openly for her as to abstain for several days, during the heat of the contest, from paying their respects to the Queen;—a circumstance much remarked at a time when the custom was still observed, which had been introduced by the companionable humour of Charles, for the principal nobility to appear almost daily at Court. Sunderland, already connected with the Catholic favourites, was now more than ever compelled to make common cause with the Queen. His great strength lay in the priests; but he also called in the aid of Madame Mazarin, a beautiful woman, of weak understanding, but practised in intrigue, who had been sought in marriage by Charles II. during his exile, refused by him after his Restoration, and who, on her arrival in England, ten years after, failed in the more humble attempt to become his mistress.
The exhortations of the clergy, seconded by the beauty, the affection, and the tears of the Queen, prevailed, after a severe struggle, over the ascendant of Lady Dorchester. James sent Lord Middleton, one of his secretaries of state, to desire that she would leave Whitehall, and go to Holland, to which country a yacht was in readiness to convey her. In a letter written by his own hand, he acknowledged that he violated his promise; but excused himself by saying, that he was conscious of not possessing firmness enough to stand the test of an interview. She immediately retired to her house in St. James’ Square, and offered to go to Scotland or Ireland, or to her father’s estate in Kent; but protested against going to the Continent, where means might be found of immuring her in a convent for life. When threatened with being forcibly carried abroad, she appealed to the Great Charter against such an invasion of the liberty of the subject. The contest continued for some time; and the King’s advisers consented that she should go to Ireland, where Rochester’s brother was Lord Lieutenant. She warned the King of his danger, and freely told him, that, if he followed the advice of Catholic zealots, he would lose his crown. She represented herself as the Protestant martyr; and boasted, many years afterwards, that she had neither changed her religion, like Lord Sunderland, nor even agreed to be present at a disputation concerning its truth, like Lord Rochester.* After the complete victory of the Queen, Rochester still preserved his place, and affected to represent himself as wholly unconcerned in the affair. Sunderland kept on decent terms with his rival, and dissembled his resentment at the abortive intrigue for his removal. But the effects of it were decisive: it secured the power of Sunderland, rendered the ascendency of the Catholic counsellors irresistible, gave them a stronger impulse towards violent measures, and struck a blow at the declining credit of Rochester, from which it never recovered. The removal of Halifax was the first step towards the new system of administration; the defeat of Rochester was the second. In the course of these contests, the Bishop of London was removed from the Privy Council for his conduct in the House of Peers; several members of the House of Commons were dismissed from military as well as civil offices for their votes in Parliament; and the place of Lord President of the Council was bestowed on Sunderland, to add a dignity which was then thought wanting to his efficient office of Secretary of State.†
The Government now attempted to obtain, by the judgments of courts of law, that power of appointing Catholic officers which Parliament had refused to sanction. Instances had occurred in which the Crown had dispensed with the penalties of certain laws; and the recognition of this dispensing power, in the case of the Catholic officers, by the judges, appeared to be an easy mode of establishing the legality of their appointments. The King was to grant to every Catholic officer a dispensation from the penalties of the statutes which, when adjudged to be agreeable to law by a competent tribunal, might supply the place of a repeal of the Test Act. To obtain the judgment, it was agreed that an action for the penalties should be collusively brought against one of these officers, which would afford an opportunity to the judges to determine that the dispensation was legal. The plan had been conceived at an earlier period, since (as has been mentioned) one of the reasons of the prorogation was an apprehension lest the terrors of Parliament might obtain from the judges an irrevocable opinion against the prerogative. No doubt seems to have been entertained of the compliance of magistrates, who owed their station to the King, who had recently incurred so much odium in his service, and who were removable at his pleasure.* He thought it necessary, however, to ascertain their sentiments. His expectations of their unanimity were disappointed. Sir John Jones, who had presided at the trial of Mrs. Gaunt, Montague, who had accompanied Jeffreys in his circuit, Sir Job Charlton, a veteran royalist of approved zeal for the prerogative, together with Neville, a baron of the Exchequer, declared their inability to comply with the desires of the King. Jones answered him with dignity worthy of more spotless conduct:—“I am not sorry to be removed. It is a relief to a man old and worn out as I am. But I am sorry that your Majesty should have expected a judgment from me which none but indigent, ignorant, or ambitious men could give.” James, displeased at this freedom, answered, that he would find twelve judges of his opinion. “Twelve judges, Sir,” replied Jones, “you may find; but hardly twelve lawyers.” However justly these judges are to be condemned for their former disregard to justice and humanity, they deserve great commendation for having, on this critical occasion, retained their respect for law. James possessed that power of dismissing his judges which Louis XIV. did not enjoy; and he immediately exercised it by removing the uncomplying magistrates, together with two others who held the same obnoxious principles. On the 21st of April, the day before the courts were to assemble in Westminster for their ordinary term, the new judges were appointed; among whom, by a singular hazard, was a brother of the immortal John Milton, named Christopher, then in the seventieth year of his age, who is not known to have had any other pretension except that of having secretly conformed to the Church of Rome.†
Sir Edward Hales, a Kentish gentleman who had been secretly converted to Popery at Oxford by his tutor, Obadiah Walker, of University College (himself a celebrated convert), was selected to be the principal actor in the legal pageant for which the Bench had been thus prepared. He was publicly reconciled to the Church of Rome on the 11th of November, 1685;* he was appointed to the command of a regiment on the 28th of the same month; and a dispensation passed the Great Seal on the 9th of January following, to enable him to hold his commission without either complying with the conditions or incurring the penalties of the statute. On the 16th of June, the case was tried in the Court of King’s Bench in the form of an action brought against him by Godden, his coachman, to recover the penalty granted by the statute to a common informer, for holding a military commission without having taken the oaths or the sacrament. The facts were admitted; the defence rested on the dispensation, and the case turned on its validity. Northey, the counsel for Godden, argued the case so faintly and coldly, that he scarcely dissembled his desire and expectation of a judgment against his pretended client. Sir Edward Herbert, the Chief Justice, a man of virtue, but without legal experience or knowledge, who had adopted the highest monarchical principles, had been one of the secret advisers of the exercise of the dispensing power: in his court he accordingly treated the validity of the dispensation as a point of no difficulty, but of such importance that it was proper for him to consult all the other judges respecting it. On the 21st of June, after only five days of seeming deliberation had been allowed to a question on the decision of which the liberties of the kingdom at that moment depended, he delivered the opinion of all the judges except Street,—who finally dissented from his brethren,—in favour of the dispensation. At a subsequent period, indeed, two other judges, Powell and Atkyns, affirmed that they had dissented, and another, named Lutwych, declared that he had only assented with limitations.† But as these magistrates did not protest at the time against Herbert’s statement,—as they delayed their public dissent until it had become dishonourable, and perhaps unsafe, to have agreed with the majority, no respect is due to their conduct, even if their assertion should be believed. Street, who gained great popularity by his strenuous resistance,‡ remained a judge during the whole reign of James; he was not admitted to the presence of King William,§ nor re-appointed after the Revolution:—circumstances which, combined with some intimations unfavourable to his general character, suggest a painful suspicion, that the only judge who appeared faithful to his trust was, in truth, the basest of all, and that his dissent was prompted or tolerated by the Court, in order to give a false appearance of independence to the acts of the degraded judges.
In shortly stating the arguments which were employed on both sides of this question, it is not within the province of the historian to imitate the laborious minuteness of a lawyer: nor is it consistent with the faith of history to ascribe reasons to the parties more refined and philosophical than could probably have occurred to them, or influenced the judgment of those whom they addressed. The only specious argument of the advocates of prerogative arose from certain cases in which the dispensing power had been exercised by the Crown and apparently sanctioned by courts of justice. The case chiefly relied on was a dispensation from the ancient laws respecting the annual nomination of sheriffs; the last of which, passed in the reign of Henry VI.,* subjected sheriffs, who continued in office longer than a year, to certain penalties, and declared all patents of a contrary tenor, even though they should contain an express dispensation, to be void. Henry VII., in defiance of this statute, had granted a patent to the Earl of Northumberland to be sheriff of that county for life; and the judges in the second year of his reign declared that the Earl’s appointment was valid. It has been doubted whether there was any such determination in that case; and it has been urged, with great appearance of reason, that, if made, it proceeded on some exceptions in the statute, and not on the unreasonable doctrine, that an Act of Parliament, to which the King was a party, could not restrain his prerogative. These are, however, considerations which are rather important to the character of those ancient judges than to the authority of the precedent. If they did determine that the King had a right to dispense with a statute, which had by express words deprived him of such a right, so egregiously absurd a judgment, probably proceeding from base subserviency, was more fit to be considered as a warning, than as a precedent by the judges of succeeding times. Two or three subsequent cases were cited in aid of this early precedent. But they either related to the remission of penalties in offences against the revenue, which stood on a peculiar ground, or they were founded on the supposed authority of the first case, and must fall with that unreasonable determination. Neither the unguarded expressions of Sir Edward Coke, nor the admissions incidentally made by Serjeant Glanville, in the debates on the Petition of Right, on a point not material to his argument, could deserve to be seriously discussed as authorities on so momentous a question. Had the precedents been more numerous, and less unreasonable,—had the opinions been more deliberate, and more uniform, they never could be allowed to decide such a case. Though the constitution of England had been from the earliest times founded on the principles of civil and political liberty, the practice of the government, and even the administration of the law had often departed very widely from these sacred principles. In the best times, and under the most regular governments, we find practices to prevail which cannot be reconciled with the principles of a free constitution. During the dark and tumultuous periods of English history, kings had been allowed to do many acts, which, if they were drawn into precedents, would be subversive of public liberty. It is by an appeal to such precedents, that the claim to dangerous prerogatives has been usually justified. The partisans of Charles I. could not deny that the Great Charter had forbidden arbitrary imprisonment, and levy of money without the consent of Parliament. But in the famous cases of imprisonment by the personal command of the King, and of levying a revenue by writs of Ship-money, they thought that they had discovered a means, without denying either of these principles, of universally superseding their application. Neither in these great cases, nor in the equally memorable instance of the dispensing power, were the precedents such as justified the conclusion. If law could ever be allowed to destroy liberty, it would at least be necessary that it should be sanctioned by clear, frequent, and weighty determinations, by general concurrence of opinion after free and full discussion, and by the long usage of good times. But, as in all doubtful cases relating to the construction of the most unimportant statute, we consider its spirit and object; so, when the like questions arise on the most important part of law, called the constitution, we must try obscure and contradictory usage by constitutional principles, instead of sacrificing these principles to such usage. The advocates of prerogative, in deed, betrayed a consciousness, that they were bound to reconcile their precedents with reason; for they, too, appealed to principles which they called “constitutional.” A dispensing power, they said, must exist somewhere, to obviate the inconvenience and oppression which might arise from the infallible operation of law; and where can it exist but in the Crown, which exercises the analogous power of pardon? It was answered, that the difficulty never can exist in the English Constitution, where all necessary or convenient powers may be either exercised or conferred by the supreme authority of Parliament. The judgment in favour of the dispensing power was finally rested by the judges on still more general propositions, which, if they had any meaning, were far more alarming than the judgment itself. They declared, that “the Kings of England are sovereign princes; that the laws of England are the King’s laws; that, therefore, it is an inseparable prerogative in the King of England to dispense with penal laws in particular cases, and on particular necessary reasons, of which reasons and necessities he is the sole judge; that this is not a trust vested in the King, but the ancient remains of the sovereign power of the Kings of England, which never yet was taken from them, nor can be.”* These propositions had either no meaning pertinent to the case, or they led to the establishment of absolute monarchy. The laws were, indeed, said to be the King’s, inasmuch as he was the chief and representative of the commonwealth—as they were contradistinguished from those of any other State,—and as he had a principal part in their enactment, and the whole trust of their execution. These expressions were justifiable and innocent, as long as they were employed to denote that decorum and courtesy which are due to the regal magistracy: but if they are considered in any other light, they proved much more than the judges dared to avow. If the King might dispense with the laws, because they were his laws, he might for the same reason suspend, repeal, or enact them. The application of these dangerous principles to the Test Act was attended with the peculiar absurdity of attributing to the King a power to dispense with provisions of a law, which had been framed for the avowed and sole purpose of limiting his authority. The law had not hitherto disabled a Catholic from filling the throne. As soon, therefore, as the next person in succession to the Crown was discovered to be a Catholic, it was deemed essential to the safety of the Established religion to take away from the Crown the means of being served by Catholic ministers. The Test Act was passed to prevent a Catholic successor from availing himself of the aid of a party, whose outward badge was adherence to the Roman Catholic religion, and who were seconded by powerful allies in other parts of Europe, in overthrowing the Constitution, the Protestant Church, and at last even the liberty of Protestants to perform their worship and profess their faith. To ascribe to that very Catholic successor the right of dispensing with all the securities provided against such dangers arising from himself, was to impute the most extravagant absurdity to the laws. It might be perfectly consistent with the principle of the Test Act, which was intended to provide against temporary dangers, to propose its repeal under a Protestant prince: but it is altogether impossible that its framers could have considered a power of dispensing with its conditions as being vested in the Catholic successor whom it was meant to bind. Had these objections been weaker, the means employed by the King to obtain a judgment in his favour rendered the whole of this judicial proceeding a gross fraud, in which judges professing impartiality had been named by one of the parties to a question before them, after he had previously ascertained their partiality to him, and effectually secured it by the example of the removal of more independent ones. The character of Sir Edward Herbert makes it painful to disbelieve his assertion, that he was unacquainted with these undue practices; but the notoriety of the facts seem to render it quite incredible. In the same defence of his conduct which contains this assertion, there is another unfortunate departure from fairness. He rests his defence entirely on precedents, and studiously keeps out of view the dangerous principles which he had laid down from the bench as the foundation of his judgment. Public and selemn declarations, which ought to be the most sincere, are, unhappily, among the most disingenuous of human professions. This circumstance, which so much weakens the bonds of faith between men, is not so much to be imputed to any peculiar depravity in those who conduct public affairs, as to the circumstances in which official declarations are usually made. They are generally resorted to in times of difficulty, if not of danger, and are often sure of being countenanced for the time by a numerous body of adherents. Public advantage covers falsehood with a more decent disguise than mere private interest can supply; and the vagueness of official language always affords the utmost facilities for reserve and equivocation. But these considerations, though they may, in some small degree, extenuate the disingenuousness of politicians, must, in the same proportion, lessen the credit which is due to their affirmations.*
After this determination, the judges on their circuit were not received with the accustomed honours.† Agreeably to the memorable observations of Lord Clarendon in the case of Ship-money, they brought disgrace upon themselves, and weakness upon the whole government, by that base compliance which was intended to arm the monarch with undue and irresistible strength. The people of England, peculiarly distinguished by that reverence for the law, and its upright ministers, which is inspired by the love of liberty, have always felt the most cruel disappointment, and manifested the warmest indignation, at seeing the judges converted into instruments of oppression or usurpation. These proceedings were viewed in a very different light by the ministers of absolute princes. D’Adda only informed the Papal Court that the King had removed from office some contumacious judges, who had refused to conform to justice and reason on the subject of the King’s dispensing power;‡ and so completely was the spirit of France then subdued, that Barillon, the son of the President of the Parliament of Paris,—the native of a country where the independence of the great tribunals had survived every other remnant of ancient liberty,—describes the removal of judges for their legal opinions as coolly as if he were speaking of the dismissal of an exciseman.*
The King, having, by the decision of the judges, obtained the power of placing the military and civil authority in the hands of his own devoted adherents, now resolved to exercise that power, by nominating Catholics to stations of high trust, and to reduce the Church of England to implicit obedience by virtue of his ecclesiastical supremacy. Both these measures were agreed to at Hampton Court on the 4th of July; at which result he showed the utmost complacency.† It is necessary to give some explanation of the nature of the second, which formed one of the most effectual and formidable measures of his reign.
When Henry VIII. was declared at the Reformation to be the supreme head of the Church of England, no attempt was made to define, with any tolerable precision, the authority to be exercised by him in that character. The object of the lawgiver was to shake off the authority of the See of Rome, and to make effectual provision that all ecclesiastical power and jurisdiction should be administered, like every other part of the public justice of the kingdom, in the name and by the authority of the King. That object scarcely required more than a declaration that the realm was as independent of foreign power in matters relating to the Church as in any other branch of its legislation.‡ That simple principle is distinctly intimated in several of the statutes passed on that occasion, though not consistently pursued in any of them. The true principles of ecclesiastical polity were then nowhere acknowledged. The Court of Rome was far from admitting the self-evident truth, that all coercive and penal jurisdiction exercised by the clergy was, in its nature, a branch of the civil power delegated to them by the State, and that the Church as such could exercise only that influence (metaphorically called “authority”) over the understanding and conscience which depended on the spontaneous submission of its members: the Protestant sects were not willing to submit their pretensions to the control of the magistrate: and even the Reformed Church of England, though the creature of statute, showed, at various times, a disposition to claim some rights under a higher title. All religious communities were at that time alike intolerant, and there was, perhaps, no man in Europe who dared to think that the State neither possessed, nor could delegate, nor could recognise as inherent in another body any authority over religious opinions. Neither was any distinction made in the laws to which we have adverted, between the ecclesiastical authority which the King might separately exercise and that which required the concurrence of Parliament. From ignorance, inattention, and timidity, in regard to these important parts of the subject, arose the greater part of the obscurity which still hangs over the limits of the King’s ecclesiastical prerogative and the means of carrying it into execution. The statute of the first of Elizabeth, which established the Protestant Church of England, enacted that the Crown should have power, by virtue of that act, to exercise its supremacy by Commissioners for Ecclesiastical Causes, nominated by the sovereign, and vested with uncertain and questionable, but very dangerous powers, for the execution of a prerogative of which neither law nor experience had defined the limits. Under the reigns of James and Charles this court had become the auxiliary and rival of the Star Chamber; and its abolition was one of the wisest of those measures of reformation by which the Parliament of 1641 had signalised the first and happiest period of their proceedings.* At the Restoration, when the Church of England was re-established, a part of the Act for the Abolition of the Court of High Commission, taking away coercive power from all ecclesiastical judges and persons, was repealed; but the clauses for the abolition of the obnoxious court, and for prohibiting the erection of any similar court, were expressly re-affirmed.† Such was the state of the law on this subject when James conceived the design of employing his authority as head of the Church of England, as a means of subjecting that Church to his pleasure, if not of finally destroying it. It is hard to conceive how he could reconcile to his religion the exercise of supremacy in a heretical sect, and thus sanction by his example the usurpations of the Tudors on the rights of the Catholic Church. It is equally difficult to conceive how he reconciled to his morality the employment, for the destruction of a community, of a power with which he was intrusted by that community for its preservation. But the fatal error of believing it to be lawful to use bad means for good ends was not peculiar to James, nor to the zealots of his communion. He, indeed, considered the ecclesiastical supremacy as placed in his hands by Providence to enable him to betray the Protestant establishment. “God,” said he to Barillon, “has permitted that all the laws made to establish Protestantism now serve as a foundation for my measures to re-establish true religion, and give me a right to exercise a more extensive power than other Catholic princes possess in the ecclesiastical affairs of their dominions.”‡ He found legal advisers ready with paltry expedients for evading the two statutes of 1641 and 1660, under the futile pretext that they forbad only a court vested with such powers of corporal punishment as had been exercised by the old Court of High Commission; and in conformity to their pernicious counsel, he issued, in July, a commission to certain ministers, prelates, and judges, to act as a Court of Commissioners in Ecclesiastical Causes. The first purpose of this court was to enforce directions to preachers, issued by the King, enjoining them to abstain from preaching on controverted questions. It must be owned that an enemy of the Protestant religion, placed at the head of the Church, could not adopt a more perfidious measure. He well knew that the Protestant clergy alone could consider his orders as of any authority: those of his own persuasion, totally exempt from his supremacy, would pursue their course, secure of protection from him against the dangers of penal law. The Protestant clergy were forbidden by their enemy to maintain their religion by argument, when they justly regarded it as being in the greatest danger: they disregarded the injunction, and carried on the controversy against Popery with equal ability and success.
Among many others, Sharpe, Dean of Norwich, had distinguished himself; and he was selected for punishment, on pretence that he had aggravated his disobedience by intemperate language, and by having spoken contemptuously of the understanding of all who could be seduced by the arguments for Popery, including of necessity the King himself,—as if it were possible for a man of sincerity to speak on subjects of the deepest importance without a correspondent zeal and warmth. The mode of proceeding to punishment was altogether summary and arbitrary. Lord Sunderland communicated to the Bishop of London the King’s commands, to suspend Sharpe from preaching. The Bishop answered that he could proceed only in a judicial manner,—that he must hear Sharpe in his defence before such a suspension, but that Sharpe was ready to give every proof of deference to the King. The Court, incensed at the parliamentary conduct of the Bishop, saw, with great delight, that he had given them an opportunity to humble and mortify him. Sunderland boasted to the Papal minister, that the case of that Bishop would be a great example.* He was summoned before the Ecclesiastical Commission, and required to answer why he had not obeyed his Majesty’s commands to suspend Sharpe for seditious preaching.† The Bishop conducted himself with considerable address. After several adjournments he tendered a plea to the jurisdiction, founded on the illegality of their commission; and he was heard by his counsel in vindication of his refusal to suspend an accused clergyman until he had been heard in his own defence. The King took a warm interest in the proceedings, and openly showed his joy at being in a condition to strike bold strokes of authority. He received congratulations on that subject with visible pleasure, and assured the French minister that the same vigorous system should be inflexibly pursued.* He did not conceal his resolution to remove any of the commissioners who should not do “his duty.”† The princess of Orange interceded in vain with the King for her preceptor, Compton. The influence of the Church party was also strenuously exerted for that prelate. They were not, indeed, aided by the Primate Sancroft, who, instead of either attending as a commissioner to support the Bishop of London, or openly protesting against the illegality of the court, petitioned for and obtained from the King leave to be excused from attendance on the ground of age and infirmities.‡ By this irresolute and equivocal conduct the Archhishop deserted the Church in a moment of danger, and yet incurred the displeasure of the King. Lord Rochester resisted the suspension, and was supported by Spratt, Bishop of Rochester, and Sir Edward Herbert. Even Jeffreys, for the first time, inclined towards the milder opinion; for neither his dissolute life, nor his judicial cruelty, however much at variance with the principles of religion, were, it seems, incompatible with that fidelity to the Church, which on this and some subsequent occasions prevailed over his zeal for prerogative. A majority of the commissioners were for some time favourable to Compton: Sunderland, and Crew, Bishop of Durham, were the only members of the commission who seconded the projects of the King.§ The presence or protest of the Primate might have produced the most decisive effects. Sunderland represented the authority of Government as interested in the judgment, which, if it were not rigorous, would secure a triumph to a disobedient prelate, who had openly espoused the cause of faction. Rochester at length yielded, in the presence of the King, to whatever his Majesty might determine, giving it to be understood that he acted against his own conviction.* His followers made no longer any stand, after seeing the leader of their party, and the Lord High Treasurer of England, set the example of sacrificing his opinion as a judge, in favour of lenity, to the pleasure of the King; and the court finally pronounced sentence of suspension on the Bishop against the declared opinion of three fourths of its members.
The attempts of James to bestow toleration on his Catholic subjects would, doubtless, in themselves, deserve high commendation, if we could consider them apart from the intentions which they manifested, and from the laws of which they were a continued breach. But zealous Protestants, in the peculiar circumstances of the time, were, with reason, disposed to regard them as measures of hostility against their religion; and some of them must always be considered as daring or ostentatious manifestations of a determined purpose to exalt prerogative above law. A few days after the resolution of the Council for the admission of Catholics to high civil trust, the first step was made to its execution by the appointment of the Lords Powys, Arundel, Bellasis, and Dover to be Privy Councillors. In a short time afterwards the same honour was conferred on Talbot, who was created Earl of Tyrconnel, and destined to be the Catholic Lord Lieutenant of Ireland. Sheffield, Earl of Mulgrave, a man who professed indifference in religion, but who acquiesced in all the worst measures of this reign, was appointed a member of the Ecclesiastical Commission.† Cartwright, Dean of Ripon, whose talents were disgraced by peculiarly infamous vices, was raised to the vacant bishopric of Chester, in spite of the recommendation of Sancroft, who, when consulted by James, proposed Jeffreys, the Chancellor’s brother, for that See.‡ But the merit of Cartwright, which prevailed even over that connection, consisted in having preached a sermon, in which he inculcated the courtly doctrine, that the promises of kings were declarations of a favourable intention, not to be considered as morally binding. A resolution was taken to employ Catholic ministers at the two important stations of Paris and the Hague;—“it being,” said James to Barillon, “almost impossible to find an English Protestant who had not too great a consideration for the Prince of Orange.”§ White, an Irish Catholic of considerable ability, who had received the foreign title of Marquis D’Abbeville, was sent to the Hague, partly, perhaps, with a view to mortify the Prince of Orange. It was foreseen that the known character of this adventurer would induce the Prince to make attempts to gain him; but Barillon advised his master to make liberal presents to the new minister, who would prefer the bribes of Louis, because the views of that monarch agreed with those of his own sovereign and the interests of the Catholic religion.* James even proposed to the Prince of Orange to appoint a Catholic nobleman of Ireland, Lord Carlingford, to the command of the British regiments;—a proposition, which, if accepted, would embroil that Prince with all his friends in England, and if rejected, as it must have been known that it would be, gave the King a new pretext for displeasure, to be avowed at a convenient season.
But no part of the foreign policy of the King is so much connected with our present subject as the renewal of that open intercourse with the See of Rome which was prohibited by the unrepealed laws passed in the reigns of Henry VIII. and Elizabeth. D’Adda had arrived in England before the meeting of Parliament, as the minister of the Pope, but appeared at court, at first, only as a private gentleman. In a short time, James informed him that he might assume the public character of his Holiness’ minister, with the privilege of a chapel in his house, and the other honours and immunities of that character, without going through the formalities of a public audience. The assumption of this character James represented as the more proper, because he was about to send a solemn embassy to Rome as his Holiness’ most obedient son.† D’Adda professed great admiration for the pious zeal and filial obedience of the King, and for his determination, as far as possible, to restore religion to her ancient splendour;‡ but he dreaded the precipitate measures to which James was prompted by his own disposition and by the party of zealots who surrounded him. He did not assume the public character till two months afterwards, when he received instructions to that effect from Rome. Hitherto the King had coloured his interchange of ministers with the Roman Court under the plausible pretext of maintaining diplomatic intercourse with the government of the Ecclesiastical State as much as with the other princes of Europe. But his zeal soon became impatient of this slight disguise. In a few days after D’Adda had announced his intention to assume the public character of a minister, Sunderland came to him to convey his Majesty’s desire that he might take the title of Nuncio, which would, in a more formal and solemn manner, distinguish him from other ministers as the representative of the Apostolic See. D’Adda was surprised at this rash proposal;* about which the Court of Rome long hesitated, from aversion to the foreign policy of James, from a wish to moderate rather than encourage the precipitation of his domestic counsels, and from apprehension of the insults which might be offered to the Holy See, in the sacred person of his Nuncio, by the turbulent and heretical populace of London.
The King had sent the Earl of Castlemaine, the husband of the Duchess of Cleveland, as his ambassador to Rome. “It seemed singular,” said Barillon, “that he should have chosen for such a mission a man so little known on his own account, and too well known on that of his wife.”† The ambasdor, who had been a polemical writer in the defence of the Catholics,‡ and who was almost the only innocent man acquitted on the prosecutions for the Popish Plot, seems to have listened more to zeal and resentment than to discretion in the conduct of his delicate negotiation. He probably expected to find nothing but religious zeal prevalent in the Papal councils: but Innocent XI. was influenced by his character as a temporal sovereign. He considered James not solely as an obedient son of the Church, but rather as the devoted or subservient ally of Louis XIV. As Prince of the Roman state, he resented the outrages offered to him by that monarch, and partook with all other states the dread justly inspired by his ambition and his power. Even as head of the Church, the merits of Louis as the persecutor of the Protestants§ did not, in the eye of Innocent, atone for his encouraging the Gallican Church in their recent resistance to the unlimited authority of the Roman Pontiff. These discordant feelings and embroiled interests, which it would have required the utmost address and temper to reconcile, were treated by Castlemaine with the rude hand of an inexperienced zealot. Hoping, probably, to be received with open arms as the forerunner of the reconciliation of a great kingdom, he was displeased at the reserve and coldness with which the Pontiff treated him; and instead of patiently labouring to overcome obstacles which he ought to have foreseen, he resented them with a violence more than commonly foreign to the decorum of the Papal court. He was instructed to solicit a cardinal’s hat for Prince Rinaldo of Este, the Queen’s brother;—a moderate suit, the consent to which was for a considerable time retarded by an apprehension of strengthening the French interest in the Sacred College. The second request was that the Pope would confer a titular bishopric* on Edward Petre, an English Jesuit of noble family, who, though not formally the King’s confessor,† had more influence on his mind than any other ecclesiastic. This honour was desired in order to qualify this gentleman for performing with more dignity the duties of Dean of the Chapel Royal. Innocent declined, on the ground that the Jesuits were prohibited by their institution from accepting bishopricks, and that he would sooner make a Jesuit a cardinal than a bishop. But as the Popes had often dispensed with this prohibition, Petre himself rightly conjectured that the ascendant of the Austrian party at Rome,—who looked on him with an evil eye as a partisan of France,—was the true cause of the refusal.‡ The King afterwards solicited for his favourite the higher dignity of cardinal: but he was finally refused, though with profuse civility,§ from the same motive, but under the pretence that there had been no Jesuit cardinal since Bellarmine, the great controversialist of the Roman Catholic Church.∥ Besides these personal objects, Castlemaine laboured to reconcile the Pope to Louis XIV., and to procure the interposition of Innocent for the preservation of the general peace. But of these objects, specious as they were, the attainment of the first would strengthen France, and that of the second imported a general acquiescence in her unjust aggrandizement. Even the triumph of monarchy and Popery in England, together with the projects already entertained for the suppression of the “Northern heresy,” as the Reformation was then called, and for the conquest of Holland, which was considered as a nest of heretics, could not fail to alarm the most zealous of those Catholic powers who dreaded the power of Louis, and who were averse to strengthen his allies. It was impossible that intelligence of such suggestions at Rome should not immediately reach the courts of Vienna and Madrid, or should not be communicated by them to the Prince of Orange. Castlemaine suffered himself to be engaged in contests for precedency with the Spanish minister, which served, and were perhaps intended, to embroil him more deeply with the Pope. James at first resented the refusal to promote Petre,¶ and for a time seemed to espouse the quarrel of his ambassador. D’Adda was obliged, by his station, and by his intercourse with Lord Sunderland, to keep up friendly appearances with Petre; but Barillon easily discovered that the Papal minister disliked that Jesuit and his order, whom he considered as devoted to France.* The Pope instructed his minister to complain of the conduct of Castlemaine, as very ill becoming the representative of so pious and so prudent a king; and D’Adda made the representation to James at a private audience where the Queen and Lord Sunderland were present. That zealous princess, with more fervour than dignity, often interrupted his narrative by exclamations of horror at the liberty with which a Catholic minister had spoken to the successor of St. Peter. Lord Sunderland said to him, “The King will do whatever you please.” James professed the most unbounded devotion to the Holy See, and assured D’Adda that he would write a letter to his Holiness, to express his regret for the unbecoming conduct of his ambassador.† When this submission was made, Innocent formally forgave Castlemaine for his indiscreet zeal in promoting the wishes of his sovereign;‡ and James publicly announced the admission of his ambassador at Rome into the Privy Council, both to console the unfortunate minister, and to show the more how much he set at defiance the laws which forbade both the embassy and the preferment.§
[* ] Barillon, 5th March, 1685.—Fox. app. p. xlvii. [In these dates the new style only is observed.—Ed.]
[† ] Barillon, 20th October.—Ibid. p. cxxvii.
[‡ ] Barillon, 5th November.—Ibid. p. cxxx.
[§ ] Barillon 1st March.—Ibid. p. xxxviii.
[* ] “The Earl of Middleton, then a secretary of state, seeing many go out upon the division against the Court who were in the service of Government, went down to the bar and reproached them to their faces for voting as they did. He said to a Captain Kendal, ‘Sir, have you not a troop of horse in his Majesty’s service?’ ‘Yes, sir,’ said the other: ‘but my brother died last night, and has left me seven hundred pounds a year.’ This I had from my uncle, the first Lord Onslow, who was then a member of the House, and present. This incident upon one vote very likely saved the nation.—Burnet (Oxford, 1823), vol. iii. p. 86. Note by Speaker Onslow.
[* ] Barillon, 16th July, 1685.—Fox, app. p. cix. “Le Roi me dit que si V. M. avoit quelque chose à désirer de lui. il. iroit au devant de tout ce qui peut plaire à V. M.; qu’il avoit été élevé en France, et mangé le pain de V. M.; que son cœur étoit François.” Only six weeks before (30th May), James had told his parliament that “he had a true English heart.”
[† ] Reresby, p. 218. Sir John Reresby, being a member of the House, was probably present.
[‡ ] Commons’ Journals, 18th Nov.
[§ ] Ibid., 16th June, 1st July.
[* ] The attendance was partly caused by a call of the House, ordered for the trials of Lords Stamford and Delamere. There were present on the 19th November, seventy-five temporal and twenty spiritual lords. On the call, two days before, it appeared that forty were either minors, abroad, or confined by sickness; six had sent proxies; two were prisoners for treason; and thirty absent without any special reason, of whom the great majority were disabled as Catholics: so that very few peers, legally and physically capable of attendance, were absent.
[† ] Barillon, 3d Dec.—Fox MSS. This is the only distinct narrative of the proceedings of this important and decisive day. Burnet was then on the Continent, but I have endeavoured to combine his account with that of Barillon.
[‡ ] Barillon, 26th Nov.—Fox, app. p. cxxxix.
[§ ] Barillon, 13th Dec.—Fox MSS. The expenses of the army of Charles had been 280,000l.; that of James was 600,000l. The difference of 320,000l. was, according to Barillon, thus provided for: 100,000l., the income of James as Duke of York, which he still preserved; 800,000l. granted to pay the debts of Charles, which, as the King was to pay the debts as he thought fit, would yield for some years 100,000l.; 800,000l. granted for the navy and the arsenals, on which the King might proceed slowly, or even do nothing; 400,000l. for the suppression of the rebellion. As these last funds were not to come into the Exchequer for some years, they were estimated as producing annually more than sufficient to cover the deficiency.
[∥ ] Barillon, 10th Dec.—Fox MSS.
[* ] Louis to Barillon, 19th Nov.—Fox, app. p. cxxxvi.
[† ] Barillon, 26th Nov.—Fox, app. p. cxxxix.
[‡ ] D’Adda to the Pope 19th Nov.—D’Adda MSS.
[* ] Magna Charta, c. 29.
[† ] The famous case of commitments “by the special command of the King,” which last words the Court of King’s Bench determined to be a sufficient cause for detaining a prisoner in custody, without any specification of an offence.—State Trials, vol. iii. p. 1.
[‡ ] 3 Car. I. c. i.
[§ ] 16 Car. I. c. 10.
[∥ ] 31 C. II. c. 2.
[¶ ] James retained this opinion till his death.—“It was a great misfortune to the people, as well as to the Crown, the passing of the Habeas Corpus Act, since it obliges the Crown to keep a greater force on foot to preserve the government, and encourages disaffected, turbulent, and unquiet spirits to carry on their wicked designs: it was contrived and carried on by the Earl of Shaftesbury to that intent.”—Life, vol. ii. p. 621.
[* ] Barillon, 16th July.—Fox, app. p. ciii.
[* ] Barillon, 12th Nov.—Fox. app. p. cxxxiv.—Barillon, 31st Dec.—Fox MSS. Burnet, vol. i. p. 661. The coincidence of Burnet with the more ample account of Barillon is an additional confirmation of the substantial accuracy of the honest prelate.
[† ] “Elle a beaucoup d’esprit et de la vivacité, mais elle n’a plus aucune beauté, et est d’une extrême maigreur.” Barillon, 7th Feb. 1686.—Fox MSS. The insinuation of decline is somewhat singular, as her father was then only forty-six.
[* ] These defects are probably magnified in the verses of Lord Dorset:“Dorinda’s sparkling wit and eyesUnited, cast too fierce a light,Which blazes high, but quickly dies,Pains not the heart, but hurts the sight.“Love is a calmer, gentler joy;Smooth are his looks, and soft his pace:Her Cupid is a blackguard boy,That runs his link full in your face.”
[† ] D’Adda to Cardinal Cybo, 1st Feb.—D’Adda MSS.
[‡ ] Mémoires Historiques de la Reine d’Angleterre, a MS. formerly in possession of the nuns of Chaillot, since in the Archives Générales de France.
[§ ] Bonrepaux, 7th Feb. 1686, MSS. Evelyn, vol. i. p. 584.
[* ] Carte, Life of Ormonde, vol. ii. p. 553. The old duke, high-minded as he was, commended the prudent accommodation of Rochester.
[* ] Halifax MSS.
[† ] These intrigues are very fully related by Bonrepaux, a French minister of talent, at that time sent on a secret mission to London, and by Barillon in his ordinary communications to the King. The despatches of the French ministers afford a new proof of the good information of Burnet; but neither he nor Reresby was aware of the connection of the intrigue with the triumph of Sunderland over Rochester.
[* ] “Les juges declareront qu’il est la prérogative du Roi de dispenser des peines portées par la loi.” Barillon, 3d Dec.—Fox MSS.
[† ] The conversion of Sir Christopher is, indeed, denied by Dodd, the very accurate historian of the English Catholics.—Church History, vol. iii. p. 416. To the former concurrence of all contemporaries we may now add that of Evelyn (vol. i. p. 590,) and Narcissus Luttrell. “All the judges,” says the latter, “except Mr. Baron Milton, took the oaths in the Court of Chancery. But he, it said, owns himself a Roman Catholic.”—MSS. Diary, 8th June.
[* ] Dodd, vol. iii. p. 451.
[† ] Commons’ Journals, 18th June, 1689.
[‡ ] “Mr. Justice Street has lately married a wife, with a good fortune, since his opinion on the dispensing power.”—Narcissus Luttrell, Oct. 1686.
[§ ] “The Prince of Orange refused to see Mr. Justice Street. Lord Coote said he was a very ill man.”—Clarendon, Diary, 27th December, 1688.
[* ] 23 Hen. VI. c. 7.
[* ] State Trials, vol. xi. p. 1199.
[* ] The arguments on this question are contained in the tracts of Sir Edward Herbert, Sir Robert Atkyns, and Mr. Attwood, published after the Revolution.—State Trials, vol. xi. p. 1200. That of Attwood is the most distinguished for acuteness and research. Sir Edward Herbert’s is feebly reasoned, though elegantly written.
[† ] Narcissus Luttrell, 16th August, 1686.
[‡ ] D’Adda, 3d May.—MS.
[* ] Barillon, 29th April.—Fox MSS.
[† ] D’Adda, 20th July.—MS.
[‡ ] 24 Hen. VIII. c. 12. 25 Hen. VIII. c. 21. See especially the preambles to these two statutes.
[* ] 17 Car. I. c. 11.
[† ] 13 Car. II. c. 12.
[‡ ] Barillon, 22d July, 1686.—Fox MSS.
[* ] “Il Rè, sommaménte inténto a levare gli ostácoli, che possono impedire l’avanzaménto della religióne Cattólica, a trovato il mezzo più atto a mortificàre il maltalénto di Vescovo di Londra. Sarà un gran buóno e un gran esémpio, come mi na detto Milord Sunderland.” D’Adda, 12th July.—MSS.
[† ] State Trials, vol. xi. p. 1158.
[* ] Barillon, 29th July.—Fox MSS.
[† ] Barillon, 1st August.—Fox MSS.
[‡ ] This petition (in the appendix to Clarendon’s Diary) is without a date; but it is a formal one, which seems to imply a regular summons. No such summons could have issued before the 14th July, on which day Evelyn, as one of the Commissioners of the Privy Seal, affixed it to the Ecclesiastical Commission. Sancroft’s ambigious petition was therefore subsequent to his knowledge of Compton’s danger, so that the excuse of Dr. D’Oyley (Life of Sancroft, vol. i. p. 225,) cannot be allowed.
[§ ] “L’Archevesque de Canterbury s’étoit excusé de se trouver à la Commission Ecclésiastique sur sa mauvaise santé et son grand âge. On a pris aussi ce prétexte pour l’exclure de la séance de conseil.” Barillon, 21st Oct.—Fox MSS.
[* ] Barillon, 16th Sept. and 23d Sept.—Fox MSS.; a full and apparently accurate account of these divisions among the commissioners.
[† ] D’Adda, in his letter, 1st. Nov. represents Mulgrave as favourable to the Catholics.—MS.
[‡ ] D’Oyley, Life of Sancroft, vol. i. p. 235, where the Archbishop’s letter to the King (dated 29th July, 1685,) is printed.
[§ ] Barillon, 22d July.—Fox MSS.
[* ] “M. le Prince d’Orange fera ce qu’il pourra pour la gager; mais je suis persuadé qu’il aimera mieux être dans les intérêts de votre Majesté, sachant bien qu’ils sont conformés à ceux du Roi son maître, et que c’est l’avantage de la religion Catholique.” Four thousand livres, which Barillon calculates as then equivalent to three hundred pounds sterling, were given to D’Abbeville in London. Two thousand more were to be advanced to him at the Hague. Barillon, 2d Sept.—Fox MSS.
[† ] D’Adda 14th Dec. 1685.—MS.
[‡ ] Ibid. 31st. Dec.
[* ] D’Adda, 22d Feb. 1686.—“Io resto alquánto sorpréso da questa ambasciata.”
[† ] Barillon, 29th Oct. 1685.—Fox, app. p. cxxii.
[‡ ] Dodd, vol. iii. p. 450.
[§ ] It appears by the copy of a letter in my possession from Don Pedro Ronquillo, the Spanish ambassador in London, to Don Francesco Bernado de Quixos, (dated 5th April, 1686,) that Innocent, though he publicly applauded the zeal of Louis, did not in truth approve the revocation of the Edict of Nantes.
[* ] In partibus infidelium,” as it is called. Barillon, 27th June.—Fox MSS.
[† ] This office was held by a learned Jesuit, named Warner.—Dodd, vol. iii. p. 491.
[‡ ] Barillon, 20th Dec. 1686.—Fox MSS.
[§ ] Dodd, vol. iii. p. 511, where the official correspondence in 1687 is published.
[∥ ] D’Adda, 8th August, 1687.—MS.
[¶ ] Barillon, 2d Dec. 1686.—Fox MSS.
[* ] Barillon, 17th June, 1686,—10th March, 1687.—Fox MSS.
[† ] D’Adda, 30th May,—6th June, 1687.—MS.
[‡ ] Letter of Innocent to James, 16th Aug.—Dodd, vol. iii. p. 511.
[§ ] London Gazette, 26th Sept.