Duke of Monmouth
Monmouth fled from the field of battle above twenty miles till his horse sunk under him. He then changed clothes with a peasant in order to conceal himself. The peasant was discovered by the pursuers, who now redoubled the diligence of their search. At last, the unhappy Monmouth was found, lying in the bottom of a ditch, and covered with fern; his body depressed with fatigue and hunger; his mind by the memory of past misfortunes, by the prospect of future disasters. Human nature is unequal to such calamitous situations; much more the temper of a man softened by early prosperity, and accustomed to value himself solely on military bravery. He burst into tears when seized by his enemies; and he seemed still to indulge the fond hope and desire of life. Though he might have known, from the greatness of his own offences, and the severity of James’s temper, that no mercy could be expected, he wrote him the most submissive letters, and conjured him to spare the issue of a brother who had ever been so strongly attached to his interest. James, finding such symptoms of depression and despondency in the unhappy prisoner, admitted him to his presence, in hopes of extorting a discovery of his accomplices; but Monmouth would not purchase life, however loved, at the price of so much infamy. Finding all efforts vain, he assumed courage from despair, and prepared himself for death, with a spirit better suited to his rank and character. This favorite of the people was attended to the scaffold with a plentiful effusion of tears. He warned the executioner not to fall into the error which he had committed in beheading Russel, where it had been necessary to repeat the blow. This precaution served only to dismay the executioner. He struck a feeble blow on Monmouth, who raised his head from the block, and looked him in the face, as if reproaching him for his failure. He gently laid down his head a second time; and the executioner struck him again and again to no purpose. He then threw aside the axe, and cried out that he was incapable of finishing the bloody office. The sheriff obliged him to renew the attempt; and at two blows more the head was severed from the body.
Thus perished, in the thirty-sixth year of his age, a nobleman who, in less turbulent times, was well qualified to be an ornament of the court, even to be serviceable to his country. The favor of his prince, the caresses of faction, and the allurements of popularity, seduced him into enterprises which exceeded his capacity. The good will of the people still followed him in every fortune. Even after his execution, their fond credulity flattered them with hopes of seeing him once more at their head. They believed, that the person executed was not Monmouth, but one, who, having the fortune to resemble him nearly, was willing to give this proof of his extreme attachment, and to suffer death in his stead.
This victory, obtained by the king in the commencement of his reign, would naturally, had it been managed with prudence, have tended much to increase his power and authority. But by reason of the cruelty with which it was prosecuted, and of the temerity with which it afterwards inspired him, it was a principal cause of his sudden ruin and downfall.
Such arbitrary principles had the court instilled into all its servants, that Feversham, immediately after the victory, hanged above twenty prisoners; and was proceeding in his executions, when the bishop of Bath and Wells warned him, that these unhappy men were now by law entitled to a trial, and that their execution would be deemed a real murder. This remonstrance, however, did not stop the savage nature of Colonel Kirke, a soldier of fortune, who had long served at Tangiers, and had contracted, from his intercourse with the Moors, an inhumanity less known in European and in free countries. At his first entry into Bridge water, he hanged nineteen prisoners without the least inquiry into the merits of their cause. As if to make sport with death, he ordered a certain number to be executed, while he and his company should drink the king’s health, or the queen’s, or that of Chief Justice Jefferies. Observing their feet to quiver in the agonies of death, he cried that he would give them music to their dancing; and he immediately commanded the drums to beat and the trumpets to sound. By way of experiment, he ordered one man to be hung up three times, questioning him at each interval, whether he repented of his crime: but the man obstinately asserting, that notwithstanding the past, he still would willingly engage in the same cause, Kirke ordered him to be hung in chains. One story, commonly told of him, is memorable for the treachery, as well as barbarity, which attended it. A young maid pleaded for the life of her brother, and flung herself at Kirke’s feet, armed with all the charms which beauty and innocence, bathed in tears, could bestow upon her. The tyrant was inflamed with desire, not softened into love or clemency. He promised to grant her request, provided that she, in her turn, would be equally compliant to him. The maid yielded to the conditions: but after she had passed the night with him, the wanton savage next morning showed her from the window her brother, the darling object for whom she had sacrificed her virtue, hanging on a gibbet, which he had secretly ordered to be there erected for the execution. Rage, and despair, and indignation took possession of her mind, and deprived her forever of her senses. All the inhabitants of that country, innocent as well as guilty, were exposed to the ravages of this barbarian. The soldiery were let loose to live at free quarters; and his own regiment, instructed by his example, and encouraged by his exhortations, distinguished themselves in a particular manner by their outrages. By way of pleasantry, he used to call them his lambs; an appellation which was long remembered with horror in the west of England. The violent Jefferies succeeded after some interval; and showed the people, that the rigors of law might equal, if not exceed, the ravages of military tyranny. This man, who wantoned in cruelty, had already given a specimen of his character in many trials where he presided; and he now set out with a savage joy, as to a full harvest of death and destruction. He began at Dorchester; and thirty rebels being arraigned, he exhorted them, but in vain, to save him, by their free confession, the trouble of trying them: and when twenty-nine were found guilty, he ordered them, as an additional punishment of their disobedience, to be led to immediate execution. Most of the other prisoners, terrified with this example, pleaded guilty; and no less than two hundred and ninety-two received sentence at Dorchester. Of these, eighty were executed. Exeter was the next stage of his cruelty: two hundred and forty-three were there tried, of whom a great number were condemned and executed. He also opened his commission at Taunton and Wells; and every where carried consternation along with him. The juries were so struck with his menaces, that they gave their verdict with precipitation; and many innocent persons, it is said, were involved with the guilty. And on the whole, besides those who were butchered by the military commanders, two hundred and fifty-one are computed to have fallen by the hand of justice. The whole country was strowed with the heads and limbs of traitors. Every village almost beheld the dead carcass of a wretched inhabitant. And all the rigors of justice, unabated by any appearance of clemency, were fully displayed to the people by the inhuman Jefferies.
Of all the executions, during this dismal period, the most remarkable were those of Mrs. Gaunt and Lady Lisle, who had been accused of harboring traitors. Mrs. Gaunt was an Anabaptist, noted for her beneficence, which she extended to persons of all profession and persuasions. One of the rebels, knowing her humane disposition, had recourse to her in his distress, and was concealed by her. Hearing of the proclamation, which offered an indemnity and rewards to such as discovered criminals, he betrayed his benefactress, and bore evidence against her. He received a pardon as a recompense for his treachery; she was burned alive for her charity.
Lady Lisle was widow of one of the regicides, who had enjoyed great favor and authority under Cromwell, and who having fled, after the restoration, to Lauzanne, in Switzerland, was there assassinated by three Irish ruffians, who hoped to make their fortune by this piece of service. His widow was now prosecuted for harboring two rebels the day after the battle of Sedgemoor; and Jefferies pushed on the trial with an unrelenting violence. In vain did the aged prisoner plead, that these criminals had been put into no proclamation; had been convicted by no verdict; nor could any man be denominated a traitor, till the sentence of some legal court was passed upon him: that it appeared not by any proof, that she was so much as acquainted with the guilt of the persons, or had heard of their joining the rebellion of Monmouth: that though she might be obnoxious on account of her family, it was well known that her heart was ever loyal; and that no person in England had shed more tears for that tragical event, in which her husband had unfortunately borne too great a share: and that the same principles which she herself had ever embraced, she had carefully instilled into her son; and had, at that very time, sent him to fight against those rebels whom she was now accused of harboring. Though these arguments did not move Jefferies, they had influence on the jury. Twice they seemed inclined to bring in a favorable verdict: they were as often sent back with menaces and reproaches; and at last were constrained to give sentence against the prisoner. Notwithstanding all applications for pardon, the cruel sentence was executed. The king said, that he had given Jefferies a promise not to pardon her; an excuse which could serve only to aggravate the blame against himself.
It might have been hoped that, by all these bloody executions, a rebellion so precipitate, so ill supported, and of such short duration, would have been sufficiently expiated: but nothing could satiate the spirit of rigor which possessed the administration. Even those multitudes who received pardon, were obliged to atone for their guilt by fines which reduced them to beggary; or where their former poverty made them incapable of paying, they were condemned to cruel whippings or severe imprisonments. Nor could the innocent escape the hands, no less rapacious than cruel, of the chief justice. Prideaux, a gentleman of Devonshire, being thrown into prison, and dreading the severe and arbitrary spirit which at that time met with no control, was obliged to buy his liberty of Jefferies at the price of fifteen thousand pounds; though he could never so much as learn the crime of which he was accused.
Goodenough, the seditious under sheriff of London, who had been engaged in the most bloody and desperate part of the Rye-house conspiracy, was taken prisoner after the battle of Sedgemoor, and resolved to save his own life by an accusation of Cornish, the sheriff, whom he knew to be extremely obnoxious to the court. Colonel Rumsey joined him in the accusation; and the prosecution was so hastened, that the prisoner was tried, condemned, and executed in the space of a week. The perjury of the witnesses appeared immediately after; and the king seemed to regret the execution of Cornish. He granted his estate to his family, and condemned the witnesses to perpetual imprisonment.
The injustice of this sentence against Cornish was not wanted to disgust the nation with the court: the continued rigor of the other executions had already impressed a universal hatred against the ministers of justice, attended with compassion for the unhappy sufferers, who, as they had been seduced into this crime by mistaken principles, bore their punishment with the spirit and zeal of martyrs. The people might have been willing on this occasion to distinguish between the king and his ministers: but care was taken to prove, that the latter had done nothing but what was agreeable to their master. Jefferies, on his return, was immediately, for those eminent services, created a peer; and was soon after vested with the dignity of chancellor. It is pretended, however, with some appearance of authority, that the king was displeased with these cruelties, and put a stop to them by orders, as soon as proper information of them was conveyed to him.[*]
* Life of Lord Keeper North, p. 260. K. James’s Memoirs, p,144.
We must now take a view of the state of affairs in Scotland; where the fate of Argyle had been decided before that of Monmouth. Immediately after the king’s accession, a parliament had been summoned at Edinburgh; and all affairs were there conducted by the duke of Queensberry the commissioner, and the earl of Perth chancellor. The former had resolved to make an entire surrender of the liberties of his country; but was determined still to adhere to its religion: the latter entertained no scruple of paying court even by the sacrifice of both. But no courtier, even the most prostitute, could go further than the parliament itself towards a resignation of their liberties. In a vote, which they called an offer of duty, after adopting the fabulous history of a hundred and eleven Scottish monarchs, they acknowledged, that all these princes, by the primary and fundamental law of the state, had been vested with a solid and absolute authority. They declared their abhorrence of all principles and positions derogatory to the king’s sacred, supreme, sovereign, absolute power, of which none, they said, whether single persons or collective bodies, can participate, but in dependence on him, and by commission from him. They promised, that the whole nation, between sixteen and sixty, shall be in readiness for his majesty’s service, where and as oft as it shall be his royal pleasure to require them. And they annexed the whole excise, both of inland and foreign commodities, forever to the crown.
All the other acts of this assembly savored of the same spirit. They declared it treason for any person to refuse the test, if tendered by the council. To defend the obligation of the covenant, subjected a person to the same penalty. To be present at any conventicle, was made punishable with death and confiscation of movables. Even such as refused to give testimony, either in cases of treason or nonconformity, were declared equally punishable as if guilty of those very crimes; an excellent prelude to all the rigors of an inquisition. It must be confessed, that nothing could equal the abject servility of the Scottish nation during this period but the arbitrary severity of the administration.
It was in vain that Argyle summoned a people so lost to all sense of liberty, so degraded by repeated indignities, to rise in vindication of their violated laws and privileges. Even those who declared for him, were, for the greater part, his own vassals; men who, if possible, were still more sunk in slavery than the rest of the nation. He arrived, after a prosperous voyage, in Argyleshire, attended by some fugitives from Holland; among the rest, by Sir Patrick Hume, a man of mild dispositions, who had been driven to this extremity by a continued train of oppression. The privy council was beforehand apprised of Argyle’s intentions. The whole militia of the kingdom, to the number of twenty-two thousand men, were already in arms; and a third part of them, with the regular forces, were on their march to oppose him. All the considerable gentry of his clan were thrown into prison. And two ships of war were on the coast to watch his motions. Under all these discouragements he yet made a shift, partly from terror, partly from affection, to collect and arm a body of about two thousand five hundred men; but soon found himself surrounded on all sides with insuperable difficulties. His arms and ammunition were seized, his provisions cut off: the marquis of Athole pressed him on one side; Lord Charles Murray on another; the duke of Gordon hung upon his rear; the earl of Dunbarton met him in front. His followers daily fell off from him; but Argyle, resolute to persevere, broke at last with the shattered remains of his troops into the disaffected part of the low countries, which he had endeavored to allure to him by declarations for the covenant. No one showed either courage or inclination to join him; and his small and still decreasing army, after wandering about for a little time, was at last defeated and dissipated without an enemy. Argyle himself was seized and carried to Edinburgh, where, after enduring many indignities with a gallant spirit, he was publicly executed. He suffered on the former unjust sentence which had been passed upon him. The rest of his followers either escaped or were punished by transportation: Rumbold and Ayloffe, two Englishmen who had attended Argyle on this expedition, were executed.
The king was so elated with this continued tide of prosperity, that he began to undervalue even an English parliament, at all times formidable to his family; and from his speech to that assembly, which he had assembled early in the winter, he seems to have thought himself exempted from all rules of prudence or necessity of dissimulation. He plainly told the two houses, that the militia, which had formerly been so much magnified, was now found, by experience in the last rebellion, to be altogether useless; and he required a new supply, in order to maintain those additional forces which he had levied. He also took notice that he had employed a great many Catholic officers, and that he had, in their favor, dispensed with the law requiring the test to be taken by every one that possessed any public office. And to cut short all opposition, he declared, that, having reaped the benefit of their service during such times of danger he was determined neither to expose them afterwards to disgrace, nor himself, in case of another rebellion, to the want of their assistance.
Such violent aversion did this parliament bear to opposition so great dread had been instilled of the consequences attending any breach with the king, that it is probable, had he used his dispensing power without declaring it, no inquiries would have been made, and time might have reconciled the nation to this dangerous exercise of prerogative. But to invade at once their constitution, to threaten their religion, to establish a standing army, and even to require them, by their concurrence, to contribute towards all these measures, exceeded the bounds of their patience; and they began, for the first time, to display some small remains of English spirit and generosity. When the king’s speech was taken into consideration by the commons, many severe reflections were thrown out against the present measures; and the house was with seeming difficulty engaged to promise, in a general vote, that they would grant some supply. But instead of finishing that business, which could alone render them acceptable to the king, they proceeded to examine the dispensing power; and they voted an address to the king against it. Before this address was presented, they resumed the consideration of the supply; and as one million two hundred thousand pounds were demanded by the court, and two hundred thousand proposed by the country party, a middle course was chosen, and seven hundred thousand, after some dispute, were at last voted. The address against the dispensing power was expressed in the most respectful and submissive terms; yet was it very ill received by the king; and his answer contained a flat denial, uttered with great warmth and vehemence. The commons were so daunted with this reply, that they kept silence a long time; and when Coke, member for Derby, rose up and said, “I hope we are all Englishmen, and not to be frightened with a few hard words,” so little spirit appeared in that assembly, often so refractory and mutinous, that they sent him to the Tower for bluntly expressing a free and generous sentiment. They adjourned without fixing a day for the consideration of his majesty’s answer: and on their next meeting, they submissively proceeded to the consideration of the supply, and even went so far as to establish funds for paying the sum voted in nine years and a half. The king, therefore, had in effect, almost without contest or violence, obtained a complete victory over the commons; and that assembly, instead of guarding their liberties, now exposed to manifest peril, conferred an additional revenue on the crown; and, by rendering the king in some degree independent, contributed to increase those dangers with which they had so much reason to be alarmed.
The next opposition came from the house of peers, which has not commonly taken the lead on these occasions; and even from the bench of bishops, where the court usually expects the greatest complaisance and submission. The upper house had been brought, in the first days of the session, to give general thanks for the king’s speech; by which compliment they were understood, according to the practice of that time, to have acquiesced in every part of it: yet notwithstanding that step, Compton, bishop of London, in his own name and that of his brethren, moved that a day should be appointed for taking the speech into consideration: he was seconded by Halifax, Nottingham, and Mordaunt. Jefferies, the chancellor, opposed the motion; and seemed inclined to use in that house the same arrogance to which on the bench he had so long been accustomed: but he was soon taught to know his place; and he proved, by his behavior, that insolence, when checked, naturally sinks into meanness and cowardice. The bishop of London’s motion prevailed.
The king might reasonably have presumed, that, even if the peers should so far resume courage as to make an application against his dispensing power, the same steady answer which he had given to the commons would make them relapse into the same timidity; and he might by that means have obtained a considerable supply, without making any concessions in return. But so imperious was his temper, so lofty the idea which he had entertained of his own authority, and so violent the schemes suggested by his own bigotry and that of his priests, that, without any delay, without waiting for any further provocation, he immediately proceeded to a prorogation. He continued the parliament during a year and a half by four more prorogations; but having in vain tried, by separate applications, to break the obstinacy of the leading members, he at last dissolved that assembly. And as it was plainly impossible for him to find among his Protestant subjects a set of men more devoted to royal authority, it was universally concluded, that he intended thenceforth to govern entirely without parliaments.
Never king mounted the throne of England with greater advantages than James; nay, possessed greater facility, if that were any advantage, of rendering himself and his posterity absolute: but all these fortunate circumstances tended only, by his own misconduct, to bring more sudden ruin upon him. The nation seemed disposed of themselves to resign their liberties, had he not, at the same time, made an attempt upon their religion: and he might even have succeeded in surmounting at once their liberties and religion, had he conducted his schemes with common prudence and discretion. Openly to declare to the parliament, so early in his reign, his intention to dispense with the tests, struck a universal alarm throughout the nation; infused terror into the church, which had hitherto been the chief support of monarchy; and even disgusted the army, by whose means alone he could now purpose to govern. The former horror against Popery was revived by polemical books and sermons; and in every dispute the victory seemed to be gained by the Protestant divines, who were heard with more favorable ears, and who managed the controversy with more learning and eloquence. But another incident happened at this time, which tended mightily to excite the animosity of the nation against the Catholic communion.
Lewis XIV., having long harassed and molested the Protestants, at last revoked entirely the edict of Nantz; which had been enacted by Henry IV. for securing them the free exercise of their religion; which had been declared irrevocable; and which, during the experience of near a century, had been attended with no sensible inconvenience. All the iniquities inseparable from persecution were exercised against those unhappy religionists; who became obstinate in proportion to the oppressions which they suffered, and either covered under a feigned conversion a more violent abhorrence of the Catholic communion, or sought among foreign nations for that liberty of which they were bereaved in their native country. Above half a million of the most useful and industrious subjects deserted France; and exported, together with immense sums of money, those arts and manufactures which had chiefly tended to enrich that kingdom. They propagated every where the most tragical accounts of the tyranny exercised against them; and revived among the Protestants all that resentment against the bloody and persecuting spirit of Popery, to which so many incidents in all ages had given too much foundation. Near fifty thousand refugees passed over into England; and all men were disposed, from their representations, to entertain, the utmost horror against the projects which they apprehended to be formed by the king for the abolition of the Protestant religion. When a prince of so much humanity and of such signal prudence as Lewis could be engaged, by the bigotry of his religion alone, without any provocation, to embrace such sanguinary and impolitic measures, what might be dreaded, they asked, from James, who was so much inferior in these virtues, and who had already been irritated by such obstinate and violent opposition? In vain did the king affect to throw the highest blame on the persecutions in France: in vain did he afford the most real protection and assistance to the distressed Hugonots. All these symptoms of toleration were regarded as insidious; opposite to the avowed principles of his sect, and belied by the severe administration which he himself had exercised against the nonconformists in Scotland.
The smallest approach towards the introduction of Popery, must, in the present disposition of the people, have afforded reason of jealousy; much more so wide a step as that of dispensing with the tests, the sole security which the nation, being disappointed of the exclusion bill, found provided against those dreaded innovations. Yet was the king resolute to persevere in his purpose; and having failed in bringing over the parliament, he made an attempt, with more success, for establishing his dispensing power by a verdict of the judges. Sir Edward Hales, a new proselyte, had accepted a commission of colonel; and directions were given his coachman to prosecute him for the penalty of five hundred pounds, which the law, establishing the tests, had granted to informers. By this feigned action the king hoped, both from the authority of the decision, and the reason of the thing, to put an end to all questions with regard to his dispensing power.
It could not be expected that the lawyers appointed to plead against Hales would exert great force on that occasion: but the cause was regarded with such anxiety by the public, that it has been thoroughly canvassed in several elaborate discourses;[*] and could men divest themselves of prejudice, there want not sufficient materials on which to form a true judgment.
* Particularly Sir Edward Herbert’s defence in the StateTrials, and Sir Robert Atkins’s Inquiry concerning theDispensing Power.
The claim and exercise of the dispensing power is allowed to be very ancient in England; and though it seems at first to have been copied from Papal usurpations, it may plainly be traced up as high as the reign of Henry III. In the feudal governments, men were more anxious to secure their private property than to share in the public administration; and provided no innovations were attempted on their rights and possessions, the care of executing the laws, and insuring general safety, was, without jealousy, intrusted to the sovereign. Penal statutes were commonly intended to arm the prince with more authority for that purpose: and being in the main calculated for promoting his influence as first magistrate, there seemed no danger in allowing him to dispense with their execution, in such particular cases as might require an exception or indulgence. That practice had so much prevailed, that the parliament itself had more than once acknowledged this prerogative of the crown; particularly during the reign of Henry V., when they enacted the law against aliens,[*] and also when they passed the statute of provisors.[**]
* Rot. Parl. I Hen. V. n. xv.** Ibid. I Hen. V. n. xxii. It is remarkable, however, thatin the reign of Richard II. the parliament granted the kingonly a temporary power of dispensing with the statute ofprovisors. Rot. Parl. 15 Rich.[** 15 is a best guess] II. n.i.: a plain implication that he had not, of himself, suchprerogative. So uncertain were many of these points at thattime.
But though the general tenor of the penal statutes was such as gave the king a superior interest in their execution, beyond any of his subjects, it could not but sometimes happen in a mixed government, that the parliament would desire to enact laws by which the regal power, in some particulars, even where private property was not immediately concerned, might be regulated and restrained. In the twenty-third of Henry VI., a law of this kind was enacted, prohibiting any man from serving in a county as sheriff above a year; and a clause was inserted, by which the king was disabled from granting a dispensation. Plain reason might have taught, that this law, at least, should be exempted from the king’s prerogative: but as the dispensing power still prevailed in other cases, it was soon able, aided by the servility of the courts of judicature, even to overpower this statute, which the legislature had evidently intended to secure against violation. In the reign of Henry VII., the case was brought to a trial before all the judges in the exchequer chamber; and it was decreed, that, notwithstanding the strict clause above mentioned, the king might dispense with the statute: he could first, it was alleged, dispense with the prohibitory clause, and then with the statute itself. This opinion of the judges, though seemingly absurd, had ever since passed for undoubted law; the practice of continuing the sheriffs had prevailed: and most of the property in England had been fixed by decisions which juries, returned by such sheriffs, had given in the courts of judicature. Many other dispensations of a like nature may be produced; not only such as took place by intervals, but such as were uniformly continued. Thus the law was dispensed with, which prohibited any man from going a judge of assize into his own county; that which rendered all Welshmen incapable of bearing offices in Wales; and that which required every one who received a pardon for felony, to find sureties for his good behavior. In the second of James I., a new consultation of all the judges had been held upon a like question: this prerogative of the crown was again unanimously affirmed,[*] and it became an established principle in English jurisprudence, that, though the king could not allow of what was morally unlawful, he could permit what was only prohibited by positive statute. Even the jealous house of commons who extorted the petition of right from Charles I., made no scruple, by the mouth of Glanville, their manager, to allow of the dispensing power in its full extent;[**] and in the famous trial of ship money, Holborne, the popular lawyer, had freely, and in the most explicit terms, made the same concession.[***] Sir Edward Coke, the great oracle of English law, had not only concurred with all other lawyers in favor of this prerogative, but seems even to believe it so inherent in the crown, that an act of parliament itself could not abolish it.[****] And he particularly observes, that no law can impose such a disability of enjoying offices as the king may not dispense with; because the king, from the law of nature, has a right to the service of all his subjects.
* Sir Edward Coke’s Reports, seventh report.** State Trials, vol. ii. first edit. p. 205. Parl. Hist.vol. viii, p. 132.*** State Trials, vol. v. first edit. p. 171.**** Sir Edward Coke’s Reports, twelfth report, p. 18. ourancestors were, to depend upon his prudence and discretionin the exercise of them.
This particular reason, as well as all the general principles, is applicable to the question of the tests; nor can the dangerous consequence of granting dispensations in that case be ever allowed to be pleaded before a court of judicature. Every prerogative of the crown, it may be said, admits of abuse: should the king pardon all criminals, law must be totally dissolved: should he declare and continue perpetual war against all nations, inevitable ruin must ensue: yet these powers are intrusted to the sovereign.
Though this reasoning seems founded on such principles as are usually admitted by lawyers, the people had entertained such violent prepossessions against the use which James here made of his prerogative, that he was obliged, before he brought on Hales’s cause, to displace four of the judges, Jones, Montague, Charleton, and Nevil; and even Sir Edward Herbert, the chief justice, though a man of acknowledged virtue, yet, because he here supported the pretensions of the crown, was exposed to great and general reproach. Men deemed a dispensing to be in effect the same with a repealing power; and they could not conceive, that less authority was necessary to repeal than to enact any statute, if one penal law was dispensed with, any other might undergo the same fate: and by what principle could even the laws which define property be afterwards secured from violation? The test act had ever been conceived the great barrier of the established religion under a Popish successor: as such it had been insisted on by the parliament; as such granted by the king; as such, during the debates with regard to the exclusion, recommended by the chancellor. By what magic, what chicane of law, is it now annihilated, and rendered of no validity? These questions were every where asked; and men, straitened by precedents and decisions of great authority, were reduced either to question the antiquity of this prerogative itself, or to assert, that even the practice of near five centuries could not bestow on it sufficient authority.[*]
* Sir Robert Atkins, p. 21.
It was not considered, that the present difficulty or seeming absurdity had proceeded from late innovations introduced into the government. Ever since the beginning of this century, the parliament had, with a laudable zeal, been acquiring powers and establishing principles favorable to law and liberty: the authority of the crown had been limited in many important particulars: and penal statutes were often calculated to secure the constitution against the attempts of ministers, as well as to preserve general peace, and repress crimes and immoralities. A prerogative, however, derived from very ancient and almost uniform practice, the dispensing power, still remained, or was supposed to remain, with the crown; sufficient in an instant to overturn this whole fabric, and to throw down all fences of the constitution. If this prerogative, which carries on the face of it such strong symptoms of an absolute authority in the prince, had yet, in ancient times, subsisted with some degree of liberty in the subject, this fact only proves that scarcely any human government, much less one erected in rude and barbarous times, is entirely consistent and uniform in all its parts. But to expect that the dispensing power could, in any degree, be rendered compatible with those accurate and regular limitations which had of late been established, and which the people were determined to maintain, was a vain hope; and though men knew not upon what principles they could deny that prerogative, they saw that, if they would preserve their laws and constitution, there was an absolute necessity for denying, at least for abolishing it. The revolution alone, which soon succeeded, happily put an end to all these disputes: by means of it, a more uniform edifice was at last erected: the monstrous inconsistence, so visible between the ancient Gothic parts of the fabric and the recent plans of liberty, was fully corrected; and, to their mutual felicity, King and people were finally taught to know their proper boundaries.[*]
* It is remarkable, that the convention, summoned by theprince of Orange, did not, even when they had the making oftheir own terms in the declaration of rights, venture tocondemn the dispensing power in general, which had beenuniformly exercised by the former kings of England. Theyonly condemned it so far, as it had been assumed andexercised of late, without being able to tell wherein thedifference lay. But in the bill of rights, which passedabout a twelvemonth after the parliament took care to securethemselves more effectually against a branch of prerogativeincompatible with all legal liberty and limitations; andthey excluded, in positive terms, all dispensing power inthe crown. Yet even then the house of lords rejected thatclause of the bill which condemned the exercise of thispower in former kings, and obliged the commons to restcontent with abolishing it for the future. There needs noother proof of the irregular nature of the old Englishgovernment, than the existence of such a prerogative, alwaysexercised and never questioned, till the acquisition of realliberty discovered, at last, the danger of it. See theJournals.
Whatever topics lawyers might find to defend James’s dispensing power, the nation thought it dangerous, if not fatal, to liberty; and his resolution of exercising it may on that account be esteemed no less alarming, than if the power had been founded on the most recent and most flagrant usurpation. It was not likely, that an authority which had been assumed through so many obstacles, would in his hands lie long idle and unemployed. Four Catholic lords were brought into the privy council, Powis, Arundel, Bellasis, and Dover. Halifax, finding that, notwithstanding his past merits, he possessed no real credit or authority, became refractory in his opposition; and his office of privy seal was given to Arundel. The king was open, as well as zealous, in the desire of making converts; and men plainly saw, that the only way to acquire his affection and confidence was by a sacrifice of their religion. Sunderland, some time after, scrupled not to gain favor at this price, Rochester the treasurer, though the king’s brother-in-law, yet, because he refused to give this instance of complaisance, was turned out of his office; the treasury was put in commission, and Bellasis was placed at the head of it. All the courtiers were disgusted, even such as had little regard to religion. The dishonor, as well as distrust, attending renegades, made most men resolve, at all hazards, to adhere to their ancient faith.
In Scotland, James’s zeal for proselytism was more successful. The earls of Murray, Perth, and Melfort were brought over to the court religion; and the two latter noblemen made use of a very courtly reason for their conversion: they pretended, that the papers found in the late king’s cabinet had opened their eyes, and had convinced them of the preference due to the Catholic religion. Queensberry, who showed not the same complaisance, fell into total disgrace, notwithstanding his former services, and the important sacrifices which he had made to the measures of the court. These merits could not even insure him of safety against the vengeance to which he stood exposed. His rival, Perth, who had been ready to sink under his superior interest, now acquired the ascendant; and all the complaints exhibited against him were totally obliterated. His faith, according to a saying of Halifax, had made him whole.
But it was in Ireland chiefly that the mask was wholly taken off, and that the king thought himself at liberty to proceed to the full extent of his zeal and his violence. The duke of Ormond was recalled; and though the primate and Lord Granard, two Protestants, still possessed the authority of justices, the whole power was lodged in the hands of Talbot, the general, soon after created earl of Tyrconnel; a man who, from the blindness of his prejudices and fury of his temper, was transported with the most immeasurable ardor for the Catholic cause. After the suppression of Monmouth’s rebellion, orders were given by Tyrconnel to disarm all the Protestants, on pretence of securing the public peace, and keeping their arms in a few magazines for the use of the militia. Next, the army was new modelled; and a great number of officers were dismissed, because it was pretended that they or their fathers had served under Cromwell and the republic. The injustice was not confined to them. Near three hundred officers more were afterwards broken, though many of them had purchased their commissions: about four or five thousand private soldiers, because they were Protestants, were dismissed; and being stripped even of their regimentals, were turned out to starve in the streets. While these violences were carrying on, Clarendon, who had been named lord lieutenant, came over; but he soon found, that, as he had refused to give the king the desired pledge of fidelity by changing his religion, he possessed no credit or authority. He was even a kind of prisoner in the hands of Tyrconnel: and as he gave all opposition in his power to the precipitate measures of the Catholics, he was soon after recalled, and Tyrconnel substituted in his place. The unhappy Protestants now saw all the civil authority, as well as the military force, transferred into the *hands of their inveterate enemies; inflamed with hereditary hatred, and stimulated by every motive which the passion either for power, property, or religion could inspire. Even the barbarous banditti were let loose to prey on them in their present defenceless condition. A renewal of the ancient massacres was apprehended; and great multitudes, struck with the best-grounded terror, deserted the kingdom, and infused into the English nation a dread of those violences to which, after some time, they might justly, from the prevalence of the Catholics, think themselves exposed.
All judicious persons of the Catholic communion were disgusted with these violent measures, and could easily foresee the consequences. But James was entirely governed by the rash counsels of the queen and of his confessor, Father Peters, a Jesuit, whom he soon after created a privy counsellor. He thought too, that, as he was now in the decline of life, it was necessary for him, by hasty steps, to carry his designs into execution; lest the succession of the princess of Orange should overturn all his projects. In vain did Arundel, Powis, and Bellasis, remonstrate, and suggest more moderate and cautious measures. These men had seen and felt, during the prosecution of the Popish plot, the extreme antipathy which the nation bore to their religion; and though some subsequent incidents had seemingly allayed that spirit, they knew that the settled habits of the people were still the same, and that the smallest incident was sufficient to renew the former animosity. A very moderate indulgence, therefore, to the Catholic religion would have satisfied them; and all attempts to acquire power, much more to produce a change of the national faith, they deemed dangerous and destructive.
On the first broaching of the Popish plot, the clergy of the church of England had concurred in the prosecution of it, with the same violence and credulity as the rest of the nation: but dreading afterwards the prevalence of republican and Presbyterian principles, they had been engaged to support the measures of the court; and to their assistance chiefly, James had owed his succession to the crown. Finding that all these services were forgotten, and that the Catholic religion was the king’s sole favorite, the church had commenced an opposition to court measures; and Popery was now acknowledged the more immediate danger. In order to prevent inflammatory sermons on this popular subject, James revived some directions to preachers, which had been promulgated by the late king, in the beginning of his reign, when no design against the national religion was yet formed, or at least apprehended. But in the present delicate and interesting situation of the church, there was little reason to expect that orders, founded on no legal authority, would be rigidly obeyed by preachers, who saw no security to themselves but in preserving the confidence and regard of the people. Instead of avoiding controversy, according to the king’s injunctions, the preachers every where declaimed against Popery; and among the rest, Dr. Sharpe, a clergyman of London, particularly distinguished himself, and affected to throw great contempt on those who had been induced to change their religion by such pitiful arguments as the Romish missionaries could suggest. This topic, being supposed to reflect on the king, gave great offence at court; and positive orders were issued to the bishop of London, his diocesan, immediately to suspend Sharpe, till his majesty’s pleasure should be further known. The prelate replied, that he could not possibly obey these commands; But that he was not empowered, in such a summary manner, to inflict any punishment even upon the greatest delinquent. But neither this obvious reason, nor the most dutiful submissions, both of the prelate and of Sharpe himself, could appease the court. The king was determined to proceed with violence in the prosecution of this affair. The bishop himself he resolved to punish for disobedience to his commands; and the expedient which he employed for that purpose, was of a nature at once the most illegal and most alarming.
* D’Avaux, January 10, 1687.
Among all the engines of authority formerly employed by the crown, none had been more dangerous or even destructive to liberty, than the court of high commission, which, together with the star chamber, had been abolished in the reign of Charles I. by act of parliament; in which a clause was also inserted, prohibiting the erection, in all future times, of that court, or any of a like nature. But this law was deemed by James no obstacle; and an ecclesiastical commission was anew issued, by which seven commissioners[*] were vested with full and unlimited authority over the church of England.
* The persons named were, the archbishop of Canterbury,Sancroft; the bishop of Durham, Crew; of Rochester, Sprat;the earl of Rochester, Sunderland, Chancellor Jeffries, andLord Chief Justice Herbert. The archbishop refused to actand the bishop of Chester was substituted in his place.
On them were bestowed the same inquisitorial powers possessed by the former court of high commission: they might proceed upon bare suspicion; and the better to set the law at defiance, it was expressly inserted in their patent itself, that they were to exercise their jurisdiction, notwithstanding any law or statute to the contrary. The king’s design to subdue the church was now sufficiently known; and had he been able to establish the authority of this new-erected court, his success was infallible. A more sensible blow could not be given both to national liberty and religion; and happily the contest could not be tried in a cause more iniquitous and unpopular than that against Sharpe and the bishop of London.
The prelate was cited before the commissioners. After denying the legality of the court, and claiming the privilege of all Christian bishops, to be tried by the metropolitan and his suffragans, he pleaded in his own defence, that as he was obliged, if he had suspended Sharpe, to act in the capacity of a judge, he could not, consistent either with law or equity, pronounce sentence without a previous citation and trial: that he had by petition represented this difficulty to his majesty; and not receiving any answer, he had reason to think that his petition had given entire satisfaction: that in order to show further his deference, he had advised Sharpe to abstain from preaching, till he had justified his conduct to the king; an advice which, coming from a superior, was equivalent to a command, and had accordingly met with the proper obedience: that he had thus, in his apprehension, conformed himself to his majesty’s pleasure; but if he should still be found wanting to his duty in any particular, he was now willing to crave pardon, and to make reparation. All this submission, both in Sharpe and the prelate, had no effect: it was determined to have an example: orders were accordingly sent to the commissioners to proceed: and by a majority of votes, the bishop, as well as the doctor, was suspended.
Almost the whole of this short reign consists of attempts, always imprudent, often illegal, sometimes both, against whatever was most loved and revered by the nation: even such schemes of the king’s as might be laudable in themselves were so disgraced by his intentions, that they serve only to aggravate the charge against him. James was become a great patron of toleration, and an enemy to all those persecuting laws which, from the influence of the church, had been enacted both against the dissenters and Catholics. Not content with granting dispensations to particular persons, he assumed a power of issuing a declaration of general indulgence, and of suspending at once all the penal statutes by which a conformity was required to the established religion. This was a strain of authority, it must be confessed, quite inconsistent with law and a limited constitution; yet was it supported by many strong precedents in the history of England. Even after the principles of liberty were become more prevalent, and began to be well understood, the late king had, oftener than once, and without giving much umbrage, exerted this dangerous power: he had, in 1662, suspended the execution of a law which regulated carriages: during the two Dutch wars, he had twice suspended the act of navigation: and the commons, in 1666, being resolved, contrary to the king’s judgment, to enact that iniquitous law against the importation of Irish cattle, found it necessary, in order to obviate the exercise of this prerogative, which they desired not at that time entirely to deny or abrogate, to call that importation a nuisance.
Though the former authority of the sovereign was great in civil affairs, it was still greater in ecclesiastical; and the whole despotic power of the popes was often believed, in virtue of the supremacy, to have devolved to the crown. The last parliament of Charles I., by abolishing the power of the king and convocation to frame canons without consent of parliament, had somewhat diminished the supposed extent of the supremacy; but still very considerable remains of it, at least very important claims, were preserved, and were occasionally made use of by the sovereign. In 1662, Charles, pleading both the rights of his supremacy and his suspending power, had granted a general indulgence or toleration; and, in 1672, he renewed the same edict: though the remonstrances of his parliament obliged him, on both occasions, to retract; and, in the last instance, the triumph of law over prerogative was deemed very great and memorable. In general, we may remark that, where the exercise of the suspending power was agreeable and useful, the power itself was little questioned: where the exercise was thought liable to exceptions, men not only opposed it, but proceeded to deny altogether the legality of the prerogative on which it was founded.
James, more imprudent and arbitrary than his predecessor, issued his proclamation, suspending all the penal laws in ecclesiastical affairs, and granting a general liberty of conscience to all his subjects. He was not deterred by the reflection, both that this scheme of indulgence was already blasted by two fruitless attempts; and that in such a government as that of England, it was not sufficient that a prerogative be approved of by some lawyers and antiquaries: if it was condemned by the general voice of the nation, and yet was still exerted, the victory over national liberty was no less signal than if obtained by the most flagrant injustice and usurpation. These two considerations, indeed, would rather serve to recommend this project to James; who deemed himself superior in vigor and activity to his brother, and who probably thought that his people enjoyed no liberties but by his royal concession and indulgence.
In order to procure a better reception for his edict of toleration, the king, finding himself opposed by the church, began to pay court to the dissenters; and he imagined that, by playing one party against another, he should easily obtain the victory over both: a refined policy which it much exceeded his capacity to conduct. His intentions were so obvious, that it was impossible for him ever to gain the sincere confidence and regard of the nonconformists. They knew that the genius of their religion was diametrically opposite to that of the Catholics, the sole object of the king’s affection. They were sensible, that both the violence of his temper, and the maxims of his religion, were repugnant to the principles of toleration They had seen that, on his accession, as well as during his brother’s reign, he had courted the church at their expense; and it was not till his dangerous schemes were rejected by the prelates, that he had recourse to the nonconformists. All his favors, therefore, must, to every man of judgment among the sectaries, have appeared insidious: yet such was the pleasure reaped from present ease, such the animosity of the dissenters against the church, who had so long subjected them to the rigors of persecution, that they every where expressed the most entire duty to the king, and compliance with his measures; and could not forbear rejoicing extremely in the present depression of their adversaries.
But had the dissenters been ever so much inclined to shut their eyes with regard to the king’s intentions, the manner of conducting his scheme in Scotland was sufficient to discover the secret. The king first applied to the Scottish parliament, and desired an indulgence for the Catholics alone, without comprehending the Presbyterians: but that assembly, though more disposed than even the parliament of England to sacrifice their civil liberties, resolved likewise to adhere pertinaciously to their religion; and they rejected, for the first time, the king’s application. James therefore found himself obliged to exert his prerogative; and he now thought it prudent to interest a party among his subjects, besides the Catholics, in supporting this act of authority. To the surprise of the harassed and persecuted Presbyterians, they heard the principles of toleration every where extolled, and found that full permission was granted to attend conventicles; an offence which, even during this reign, had been declared no less than a capital enormity. The king’s declaration, however, of indulgence, contained clauses sufficient to depress their joy. As if Popery were already predominant, he declared, “that he never would use force or invincible necessity against any man on account of his persuasion of the Protestant religion;” a promise surely of toleration given to the Protestants with great precaution, and admitting a considerable latitude for persecution and violence. It is likewise remarkable, that the king declared in express terms, “that he had thought fit, by his sovereign authority, prerogative royal, and absolute power, which all his subjects were to obey, without reserve, to grant this royal toleration.”
The dangerous designs of other princes are to be collected by a comparison of their several actions, or by a discovery of their more secret counsels: but so blinded was James with zeal, so transported by his imperious temper, that even his proclamations and public edicts contain expressions which, without further inquiry, may suffice to his condemnation.
The English well knew that the king, by the constitution of their government, thought himself entitled, as indeed he was, to as ample authority in his southern as in his northern kingdom; and therefore, though the declaration of indulgence published for England was more cautiously expressed, they could not but be alarmed by the arbitrary treatment to which their neighbors were exposed. It is even remarkable, that the English declaration contained clauses of a strange import. The king there promised, that he would maintain his loving subjects in all their properties and possessions, as well of church and abbey lands as of any other. Men thought that, if the full establishment of Popery were not at hand, this promise was quite superfluous; and they concluded, that the king was so replete with joy on the prospect of that glorious event, that he could not, even for a moment, refrain from expressing it.
But what afforded the most alarming prospect, was the continuance and even increase of the violent and precipitate conduct of affairs in Ireland. Tyrconnel was now vested with full authority; and carried over with him as chancellor one Fitton, a man who was taken from a jail, and who had been convicted of forgery and other crimes, but who compensated for all his enormities by a headlong zeal for the Catholic religion. He was even heard to say from the bench, that the Protestants were all rogues, and that there was not one among forty thousand that was not a traitor, a rebel, and a villain. The whole strain of the administration was suitable to such sentiments. The Catholics were put in possession of the council table, of the courts of judicature, and of the bench of justices. In order to make them masters of the parliament, the same violence was exercised that had been practised in England. The charters of Dublin and of all the corporations were annulled; and new charters were granted, subjecting the corporations to the will of the sovereign. The Protestant freemen were expelled, Catholics introduced; and the latter sect, as they always were the majority in number, were now invested with the whole power of the kingdom. The act of settlement was the only obstacle to their enjoying the whole property; and Tyrconnel had formed a scheme for calling a parliament, in order to reverse that act, and empower the king to bestow all the lands of Ireland on his Catholic subjects. But in this scheme he met with opposition from the moderate Catholics in the king’s council. Lord Bellasis went even so far as to affirm with an oath, “that that fellow in Ireland was fool and madman enough to ruin ten kingdoms.” The decay of trade, from the desertion of the Protestants, was represented; the sinking of the revenue; the alarm communicated to England: and by these considerations the king’s resolutions were for some time suspended; though it was easy to foresee, from the usual tenor of his conduct, which side would at last preponderate.
But the king was not content with discovering in his own kingdoms the imprudence of his conduct: he was resolved that all Europe should be witness to it. He publicly sent the earl of Castelmaine ambassador extraordinary to Rome, in order to express his obeisance to the pope, and to make advances for reconciling his kingdoms, in form, to the Catholic communion. Never man, who came on so important an errand, met with so many neglects, and even affronts, as Castelmaine. The pontiff, instead of being pleased with this forward step, concluded, that a scheme conducted with so much indiscretion, could never possibly be successful. And as he was engaged in a violent quarrel with the French monarch, a quarrel which interested him more nearly than the conversion of England, he bore little regard to James, whom he believed too closely connected with his capital enemy.
The only proof of complaisance which James received from the pontiff, was his sending a nuncio to England, in return for the embassy. By act of parliament, any communication with the pope was made treason: yet so little regard did the king pay to the laws, that he gave the nuncio a public and solemn reception at Windsor. The duke of Somerset, one of the bed-chamber, because he refused to assist at this ceremony, was dismissed from his employment. The nuncio resided openly in London during the rest of this reign. Four Catholic bishops were publicly consecrated in the king’s chapel, and sent out, under the title of vicars apostolical, to exercise the episcopal function in their respective dioceses. Their pastoral letters, directed to the lay Catholics of England, were printed and dispersed by the express allowance and permission of the king. The regular clergy of that communion appeared in court in the habits of their order; and some of them were so indiscreet as to boast, that, in a little time, they hoped to walk in procession through the capital.
While the king shocked in the most open manner all the principles and prejudices of his Protestant subjects, he could not sometimes but be sensible, that he stood in need of their assistance for the execution of his designs. He had himself, by virtue of his prerogative, suspended the penal laws, and dispensed with the test; but he would gladly have obtained the sanction of parliament to these acts of power; and he knew that, without this authority, his edicts alone would never afford a durable security to the Catholics. He had employed, therefore, with the members of parliament many private conferences, which were then called “closetings;” and he used every expedient of reasons, menaces, and promises to break their obstinacy in this particular. Finding all his efforts fruitless, he had dissolved the parliament, and was determined to call a new one, from which he expected more complaisance and submission. By the practice of annulling the charters, the king was become master of all the corporations, and could at pleasure change every where the whole magistracy. The church party, therefore, by whom the crown had been hitherto so remarkably supported, and to whom the king visibly owed his safety from all the efforts of his enemies, was deprived of authority; and the dissenters, those very enemies, were first in London, and afterwards in every other corporation, substituted in their place. Not content with this violent and dangerous innovation, the king appointed certain regulators to examine the qualifications of electors; and directions were given them to exclude all such as adhered to the test and penal statutes.[*]