they were not allowed to serve on juries, or to hold office; and a special procedure was devised against those of them who refused tithes. to pay The effect of this legislation was to legalize the worship of Protestant nonconformists, and to relieve them from the penalties to which they had formerly been subject. But the provisions of the Corporation' and Test Acts 2 still debarred them from holding office, if they declined to take the sacrament according to the rites of the church of England; and, as we have seen,3 the church of England resisted all attempts to modify its formularies with a view to comprehension. As Macaulay has pointed out, this legislation "will not bear to be tried by any principle, sound or unsound"; and yet, as he rightly says, it successfully accomplished, without creating any further excitement, the difficult feat of introducing a large measure of toleration. It succeeded where a larger, a more comprehensive, and a more logical measure would have roused the passions of religious bigotry, and have seriously compromised the success of the Revolution settlement.* 5 It is obvious that the Roman Catholics could take no benefit from the Toleration Act; and, to make this quite clear, an express clause to this effect was inserted. Roman Catholicism, as the result of the Revolution, had come to be more closely connected than ever with treasonable designs. Therefore it is not surprising to find that the laws against Roman Catholics were made more severe. Thus, in 1688, it was enacted that Roman Catholics who refused to make the declaration set out in the Test Act should not reside within ten miles of London," and should not be allowed to have arms or munitions, or horses above the value of £5.7 In 1698-1699 8 it was enacted that a Roman Catholic bishop or priest who said mass, or a Roman Catholic who kept a school, should be liable to perpetual imprisonment; " and that Roman Catholics should be incapable of holding and purchasing land.10 It was further provided that if Roman 2 Above 181-182. 3 Above 172, 197. 1 Above 167, 197. 4 Macaulay, Hist. (ed. 1864) ii 283-284. Its provisions "removed a vast mass of evil without shocking a vast mass of prejudice; they put an end at once and for ever, without one division in either House of Parliament, without one riot in the streets, with scarcely one audible murmur even from the classes most deeply tainted with bigotry, to a persecution which had raged during four generations. 51 William and Mary c. 18 § 14; this section also enacts that it shall not extend to persons who deny the doctrine of the Trinity; a Papists' Toleration Bill had been introduced into the House of Lords in 1689 (perhaps with the support of Halifax, see below 288 n. 5) but was dropped, Hist. MSS. Comm. 12th Rep. App. Pt. vi 385 no. 194. I William and Mary c. 9. 8 II William III. c. 4. 7 Ibid c. 15. $ 3. 10 § 4-unless they took the oaths of allegiance and supremacy and made the declaration against transubstantiation—a condition they obviously could not fulfil. Catholic parents endeavoured to change the religion of their Protestant children by refusing them maintenance, the lord chancellor should have power to order maintenance.1 If we confined our attention to the legislation of William III.'s reign we should be inclined to say that the Revolution had made little difference in the ecclesiastical policy of the state. The constitutional position, the doctrines, and the formularies of the established church were unchanged; and communion with that church was still necessary to secure full rights of citizenship. The position of the Roman Catholics was altered only for the worse. The only direct change was the measure of toleration accorded to the Protestant nonconformists. But to estimate the effects of the Revolution upon the ecclesiastical policy of the state simply from a review of this legislation would be altogether misleading. With the overthrow of the theory of divine right of kings, and its accompanying doctrines of non-resistance and passive obedience; and with the disappearance of the more acute political and theological grievances of the Protestant nonconformists brought about by the change of dynasty and the Toleration Act; religious controversies gradually ceased to exercise that dominating influence upon politics which they had exercised throughout the sixteenth and seventeenth centuries. That influence had embittered political controversy. It had had, as we have seen,3 no small share in causing the outbreak of the Civil War, and it had determined the course of English political history since the Restoration. Its gradual elimination tended, in course of time, to create an atmosphere in which the idea of a larger toleration could grow up, till that idea ceased to be the visionary hope of a few speculative thinkers, and became a measure demanded by statesmen. This change of feeling was helped forward by the fact that, as a result of the Revolution, the fundamental principles of English public law were now finally settled. This settlement furnished a basis of agreement, which rendered it possible to develop a system of government under which parties peaceably contended in Parliament for the victory of their respective political views. The victory of the one or other party gradually ceased to be accompanied and followed by the proscription of their opponents. The opposition peacefully succeeded to the places of their opponents without danger to the stability of the government. Stagnation was avoided, and at the same time an orderly and a continuous development of the constitution was secured. 1§7; the severe provisions of this Act were rarely enforced, see Hallam, C.H. iii 179. 3 Above 121-122, 137-138. 2 Below 279. This change in ideas took many years to accomplish fully. There was an outburst of Anglican intolerance towards the Protestant nonconformists at the end of Anne's reign, which resulted in the passing of the Occasional Conformity1 and Schism 2 Acts. Throughout the eighteenth century any attempt to pass a measure of relief for the Roman Catholics was bitterly opposed. But we can see the beginnings of the change at the Revolution. Already in the Parliaments of William III.'s reign topics of religious, were tending to fall apart from topics of political, controversy; and, though in Sacheverell's impeachment, they united again, it was but a momentary revival. We shall now see that, just as this elimination of the odium theologicum settled the constitutional position of the established church for upwards of a century, so it helped to settle, and for the most part to settle finally, most of the political and constitutional controversies of the seventeenth century. (2) The constitutional position of the king and his prerogative. The legislation of the Long Parliament, the Interregnum, and the Restoration had contributed towards the settlement of the constitutional position of the king and his prerogative; but these events had by no means completely settled it. There were many outstanding questions, both as to the relation of the prerogative to Parliament and the law, and as to the actual contents of particular prerogatives, which still awaited settlement; and, in the heated political and theological atmosphere of Charles II.'s and James II.'s reigns, many of these questions were furiously debated by the rival political and religious parties. Amidst the turmoil of these contests it sometimes almost seemed that the events which had happened between 1641 and 1660 had been forgotten; and that the same contests between Parliament and the prerogative, which had been fought out in the earlier Stuart period, were being fought over again. In reality it was not so. These events had altered entirely the nature of the contest, and the aims of the contending parties. We have seen that under the earlier Stuart kings a theory had been elaborated which would have made the king, by virtue of his extraordinary powers, the sovereign power in the constitution, and would have enabled him to over-ride, and if necessary dispense with Parliament. Neither Charles II. nor even James II. laid claims to such powers as these. Even the judgment of Herbert, C. J., in Godden v. Hales, which may be taken as the 1 10 Anne c. 5. 4 2 12 Anne c. 7. 3 (1710) 15 S.T. 1; see Hallam, C.H. iii. 204-208. 4 Above 20-29. 5 (1686) II S.T. 1166; below 223-225. highwater mark of prerogative pretension in the latter half of the seventeenth century, made no such claim as this. It asserted the particular prerogative to grant dispensations in the widest of terms, and asserted that the kings of England, being sovereign princes, had certain inherent prerogatives (of which this was one) which could not be taken away even by Parliament. It made no assertion, such as was made in the Case of Ship Money, that the king, whenever he deemed it necessary, could override Parliament.' Similarly, the sovereignty which the Long Parliament in fact exercised during the Civil Wars and up to the time when it was expelled by Cromwell, also disappeared at the Restoration. The king was restored to all the prerogatives of his predecessors, except in so far as they had been modified by the legislation of the Long Parliament to which Charles I. had assented. The independent position which he occupied in the state was guaranteed by the belief held by a large, and perhaps the largest number of his subjects, that he was king by divine right, that it was both a crime and a sin to resist his commands, and that, even if active obedience to them could not be given, passive obedience was always due. The lawyers recognized that he was the head of the government and the state. It was thus generally recognized that both king and Parliament were necessary parts of the constitution, each occupying an independent sphere of its own; each possessed of the powers and privileges necessary for the fulfilment of its appointed functions. This new conception of the constitutional position of king and Parliament, which had emerged at the Restoration, comes out very clearly in Hale's tract "Of Soveraigne Power."4 Hale begins by pointing out that the kinds of government are very various-there are monarchies, aristocracies, and democracies, "and some mixt of all, and those mixtures are or may be infinitly various." "In some Constitutions one part of the Soveraigne Power is in one part of the government, another part in another." These variations have arisen sometimes by the "original institution of the government," sometimes by "long custom and usage," sometimes by conquest, sometimes by "concessions and natural agreement between the governors and governed." " In England Hale has no hesitation in attributing "Soveraigne Power" to the king. "No good subject that under 2 Above 144-146. 3 Below 276-279. 1 Above 28, 52, 53. Harleian MS. 711 ff. 418-439; vol. v App. III.; Hales tract is entitled, "Reflections by the Lord Cheife Justice Hale on Mr. Hobbes his Dialogue of the Lawe"; the first part-" Of Laws in Generall and the Law of reason," I have already noticed, vol. v 482-485; the second part, which I describe here, is entitled "Of Soveraigne Power"; in this separate tract it consists of 21 pages (22-43). P. 22. 6 Pp. 23-26. stands what he sayes can make any question where the Soveraigne Power of this kindom resides. The laws of the land and the oath of supremacy teach us that the king is the only supreame governour of this realme, and as incident to that supreame power he hathe among others these greate powers of Sovereignty. 1. He hath the only power of makeing peace and declareing warr. 2. He hath the only power of giveing the vallue and legitimation to Coyne. 3. He alone hath the power of pardoning the punishments of publique offences. 4. From him originally is derived all jurisdiction for the administration of the common justice of the kingdom whether civil or ecclesiasticall, whether ordinary or delegate. 5. In him alone is the power of the militia of this kingdome, and the raiseing of forces both by land and sea. 6. In him resides the power of making lawes. The laws are his laws enacted by him. These are the greate Jura Summi Imperii that the laws of this kingdome have fixed in the crown of England. Butt yett there are certaine qualifications."' Thus, though the laws have no coercive power over the king, they have a directive power over him-he is bound by his coronation oath and the laws that "concerne the liberties of his subjects"; and the laws "in many cases hinder the kinges acts and make them void if they are against law." Then, too, his power over the militia is restrained by the fact that he cannot compel his subjects to serve out of the kingdom, and that he cannot raise money without the consent of Parliament; while his power over legislation is also qualified by the necessity of getting the same consent.1 Hale will have none of the fancies of those speculators who maintain that "there can be noe qualifications or modifications of the power of a soveraigne prince, but that he may make repeale and alter what laws he please, impose what taxes he pleases, derogate from his subjects propertie how and when he please. That he alone is judge of all publique dangers and may appoint such remedyes as he please and impose what charges he thinkes fitt in order thereunto." 5 He has no difficulty in proving from English law and history that such "wild propositions are: 1. Utterly false. 2. Against all Naturall justice. 3. Pernicious to the government. 4. Destructive to the common good and safety of the government. 5. Without any shadow of law or reason to support them." 6 It is probable that Hale was by no means unique in his views as to the constitutional position of king and Parliament. North, whose political views were a good deal more royalist than those of Hale, would probably have agreed with him. He was in 1 Pp. 26, 27. 2 P. 26. Pp. 30-43. 3 P. 28. |