CHAPTER VIII JAMES II AND THE CATHOLIC REACTION CHARLES II, though Catholic at heart and a firm believer in absolutism, as far as he was capable of any convictions, was determined not to lose his throne as his father had done. James II, however, did not possess the qualities of indifference and compromise which characterized his brother. He was not only Catholic, but he wanted to see the English nation converted to his faith. He was determined to allow no obstacle to prevent the realization of his cherished plans. He therefore took advantage of many points on which the royal power was not explicitly defined, and resorted to measures which really violated the spirit if not the letter of the law and custom of the constitution. The result was the awakening of an opposition which expelled him from his throne. The most brilliant account of this Revolution of 1688 is by the great Whig historian Macaulay, whose sympathies with the cause of the Revolution gave him a remarkable insight into the views of the leaders, but prevented his doing justice to both parties. From his predecessors James had inherited two prerogatives, of which the limits had never been defined with strict accuracy, and which, if exerted without any limit, would of themselves have sufficed to overturn the whole polity of the State and of the Church. These were the dispensing power and the ecclesiastical supremacy. By means of the dispensing power, the king purposed to admit Roman Catholics, not merely to civil and military, but to spiritual, offices. By means of the ecclesiastical supremacy he hoped to make the Anglican clergy his instruments for the destruction of their own religion. 'Macaulay, History of England, chaps. vi-viii. This scheme developed itself by degrees. It was not thought safe to begin by granting to the whole Roman Catholic body a dispensation from all statutes imposing penalties and tests. For nothing was more fully established than that such a dispensation was illegal. The Cabal had, in 1672, put forth a general Declaration of Indulgence. The Commons, as soon as they met, had protested against it. Charles the Second had ordered it to be cancelled in his presence, and had, both by his own mouth and by a written message, assured the houses that the step which had caused so much complaint should never be drawn into precedent. It would have been difficult to find in all the Inns of Court a barrister of reputation to argue in defence of a prerogative which the sovereign, seated on his throne in full Parliament, had solemnly renounced a few years before. But it was not quite so clear that the king might not, on special grounds, grant exemptions to individuals by name. The first object of James, therefore, was to obtain from the courts of common law an acknowledgment that, to this extent at least, he possessed the dispensing power. 2. Coercion of the Courts But though his pretensions were moderate when compared with those which he put forth a few months later, he soon found that he had against him almost the whole sense of Westminster Hall. Four of the judges gave him to understand that they could not, on this occasion, serve his purpose; and it is remarkable that all the four were violent Tories, and that among them were men who had accompanied Jeffreys on the Bloody Circuit, and who had been consenting to the death of Cornish and of Elizabeth Gaunt. Jones, the Chief-Justice of the Common Pleas, a man who had never before shrunk from any drudgery, however cruel or servile, now held in the royal closet language which might have become the lips of the purest magistrates in our history. He was plainly told that he must either give up his opinion or his place. "For my place," he answered, "I care little. I am old and worn out in the service of the crown; but I am mortified to find that your Majesty thinks me capable of giving a judgment which none but an ignorant or a 'dishonest man could give." "I am determined," said the king, "to have twelve judges who will be all of my mind as to this matter." "Your Majesty," answered Jones "may find twelve judges of your mind, but hardly twelve lawyers." He was dismissed, together with Montague, Chief Baron of the Exchequer, and two puisne judges, Neville and Charlton. One of the new judges was Christopher Milton, younger brother of the great poet. Of Christopher little is known, except that in the time of the Civil War he had been a Royalist, and that he now, in his old age, leaned towards popery. It does not appear that he was ever formally reconciled to the Church of Rome; but he certainly had scruples about communicating with the Church of England, and had therefore a strong interest in supporting the dispensing power. The king found his counsel as refractory as his judges. The first barrister who learned that he was expected to defend the dispensing power was the solicitor-general, Heneage Finch. He peremptorily refused, and was turned out of office on the following day. The attorney-general, Sawyer, was ordered to draw warrants authorizing members of the Church of Rome to hold benefices belonging to the Church of England. Sawyer had been deeply concerned in some of the harshest and most unjustifiable prosecutions of that age, and the Whigs abhorred him as a man stained with the blood of Russell and Sidney; but on this occasion he showed no want of honesty or of resolution. "Sir," said he, "this is not merely to dispense with a statute; it is to annul the whole statute law from the accession of Elizabeth to the present day. I dare not do it, and I implore your Majesty to consider whether such an attack upon the rights of the Church be in accordance with your late gracious promises." Sawyer would have been instantly dismissed, as Finch had been, if the government could have found a successor; but this was no easy matter. It was necessary, for the protection of the rights of the crown, that one at least of the crown lawyers should be a man of learning, ability, and experience, and no such man was willing to defend the dispensing power. The attorney-general was therefore permitted to retain his place during some months. Thomas Powis, an obscure barrister who had no qualification for high employment except servility, was appointed solicitor. 83. The Hales Case and Public Employment of Catholics The preliminary arrangements were now complete. There was a solicitor-general to argue for the dispensing power, and a bench of judges to decide in favor of it. The question was therefore speedily brought to a hearing. Sir Edward Hales, a gentleman of Kent, had been converted to popery in days when it was not safe for any man of note openly to declare himself a Papist. He had kept his secret, and, when questioned, had affirmed that he was a Protestant with a solemnity which did little credit to his principles. When James had ascended the throne, disguise was no longer necessary. Sir Edward publicly apostatized, and was rewarded with the command of a regiment of foot. He had held his commission more than three months without taking the sacrament. He was therefore liable to a penalty of five hundred pounds, which an informer might recover by action of debt. A menial servant was employed to bring a suit for this sum in the Court of King's Bench. Sir Edward did not dispute the facts alleged against him, but pleaded that he had letters-patent authorizing him to hold his commission notwithstanding the Test Act. The plaintiff demurred, that is to say, admitted Sir Edward's plea to be true in fact, but denied that it was a sufficient answer. Thus was raised a simple issue of law to be decided by the court. A barrister, who was notoriously a tool of the government, appeared for the mock plaintiff and made some feeble objections to the defendent's plea. The new solicitor-general replied. The attorney-general took no part in the proceedings. Judgment was given by the Lord Chief-Justice, Sir Edward Herbert. He announced that he had submitted the question to all the twelve judges, and that, in the opinion of eleven of them, the king might lawfully dispense with penal statutes in particular cases, and for special reasons of grave importance. The single dissentient, Baron Street, was not removed from his place. He was a man of morals so bad that his own relations shrank from him, and that the Prince of Orange, at the time of the Revolution, was advised not to see him. The character of Street makes it impossible to believe that he would have been more scrupulous than his brethren. The character of James makes it impossible to believe that a refractory Baron of the Exchequer would have been permitted to retain his post. There can, therefore, be no reasonable doubt that the dissenting judge was, like the plaintiff and the plaintiff's council, acting collusively. It was important that there should be a great preponderance of authority in favor of the dispensing power; yet it was important that the bench, which had been carefully packed for the occasion, should appear to be independent. One judge, therefore, the least respectable of the twelve, was permitted, or more probably commanded, to give his voice against the prerogative. The power which the courts of law had thus recognized was not suffered to lie idle. Within a month after the decision of the King's Bench had been pronounced four Roman Catholic Lords were sworn of the Privy Council. Two of them, Powis and Bellasyse, were of the Moderate party, and probably took their seats with reluctance and with many sad forebodings. The other two, Arundell and Dover, had no such misgivings. ... 84. Rapid Development of Catholicism The temper of the nation was indeed such as might well make the king hesitate. During some months discontent had been steadily and rapidly increasing. The celebration of the Roman Catholic worship had long been prohibited by act of Parliament. During several generations no Roman Catholic clergyman had dared to exhibit himself in any public place with the badges of his office. Against the regular clergy, and against the restless and subtle Jesuits by name, had been enacted a succession of rigorous statutes. Every Jesuit who set foot in this country was liable to be hanged, drawn, and quartered. A reward was offered for his detection. He was not allowed to take advantage of the general rule, that men are not bound to accuse themselves. Whoever was suspected of being a Jesuit might be interrogated, and, if he refused to answer, might be sent to prison for life. These laws, though they had not, except when there was supposed to be some peculiar danger, been strictly executed, and though they had never prevented Jesuits from resorting to England, had made disguise necessary. But all disguise was now thrown off. Injudicious members of the king's Church, encouraged by him, took a pride in defying statutes which were still of undoubted validity, and feelings which had a stronger hold of the national mind than at any former period. Roman Catholic chapels rose all over the country. Cowls, girdles of ropes, and strings of beads constantly appeared in the streets, and astonished a population, the oldest of whom had never seen a conventual garb except on the stage. A convent arose at Clerkenwell, on the site of the ancient cloister of St. John. The Franciscans occupied a mansion in Lincoln's Inn Fields. The Carmelites were quartered in the city. A society of Benedictine monks was lodged in St. James's Palace. In the Savoy a spacious house, including a church and a school, was built for the Jesuits. The skill and care with which those fathers had, during several generations, conducted the education of youth, had |