clearly declare, that there was no imaginable difference between that case and this; unless it were, that this were very much the clearer case of the two, and liable to the fewer exceptions.

My brother Powell said, he was inclined to be of the same opinion; but he would rather have some more time to consider of it but he has since sent by my lord Holloway, to let us know that he does concur with us. To these eleven judges there is one dissenter, brother Street, who yet continues his opinion, That the king cannot dispense in this case but that's the opinion of one single judge, against the opinion of eleven. We were satisfied in our judgments before, and having the concurrence of eleven out of twelve, we think we may well declare the opinion of the court to be, that the king may dispense in this case: and the judges go upon these grounds;

1. That the kings of England are sovereign princes.

2. That the laws of England are the king's laws.

3. That therefore 'tis an inseparable prerogative in the kings of England, to dispense with penal laws in particular cases, and upon particular necessary reasons.

4. That of those reasons and these necessities, the king himself is sole judge and then, which is consequent upon all,

:

5. That this is not a trust invested in, or granted to the king by the people, but the ancient remains of the sovereign power and prerogative of the kings of England; which never yet was taken from them, nor can be. And therefore such a dispensation appearing upon record to come time enough to save him from the forfeiture, judgment ought to be given for the defendant.

Right trusty &c. we greet you well. Whereas in the 12th Act of our current parliament, intituled "Act of Supply," there is a clause ordaining. to take the oath and that appointed by law, which clause we judge fit, for our service, to require you to put vigorously in execution excepting these . . . whom we have dispensed with from taking the same, and such as we shall hereafter dispense with under our royal hand. For doing whereof this shall be your warrant, and so we bid you heartily farewell. Given at our Court at Whitehall, the 7th day of November, 1685, and of our reign the first year.

By His Majesty's command,

MELFORD.

IX

THE CASE OF THE SEVEN BISHOPS

4 James II., 1688.

[Archbishop Sancroft and six bishops, St. Asaph, Ely, Peterborough, Bath and Wells, Chichester, and Bristol, petitioned the King in person against the orders to distribute and read the Declaration of Indulgence. Subsequently being informed that a criminal information for libel would be exhibited against them in the Court of King's Bench, they refused on the ground of their privileges as Peers to enter into recognisances to appear, and were committed to the Tower. On June 29, 1688, they were tried before the Lord Chief Justice and a jury, on a charge of writing and publishing a "false, feigned, malicious, pernicious, and seditious libel." The trial turned largely on two points: (1) Was the publication proved? (2) Was the petition libellous? It has since become a leading case on (1) the right to petition, (2) the nature of seditious libel, and (3) the legality of the power by prerogative to suspend and dispense with existing laws, as had been claimed and exercised in the Declaration of Indulgence. The extracts give (1) the Declaration of Indulgence, (2) the Order in Council, (3) the Bishop's Protest, and (4) a report of the case. On June 30 the jury found a verdict of "Not Guilty" on the whole question. See Macaulay, H. of E. ch. viii.; S.T. xii. 183-433; Hallam, C.H. iii. ch. xiv.; May, C.H.E. i. 444-451, ii, 107-117; Broom, C.L. 406-517.]

I

THE DECLARATION OF INDULGENCE, 1687.1

His Majesty's gracious declaration to all his loving subjects for liberty of conscience.

It having pleased God Almighty not only to bring us to the imperial crown of these kingdoms through the greatest difficulties, but to preserve us by a more than ordinary providence upon the throne of our royal ancestors, there is nothing now that we so fondly desire as to establish our government on such a foundation as may make our subjects happy, and unite us by inclination as well as duty. Which we think can be done by no means so effectually as by granting to them the free exercise of their religion for the time to come, and add that to the perfect enjoyment of their property, which has never been in any case invaded by us since our coming to the crown. Which being the two things men value most, shall ever be preserved in these kingdoms, during our reign over them, as the truest methods 1 Cp. throughout with the Declaration of Charles II., p. 42.

of their peace and our glory. We cannot but heartily wish, as it will easily be believed, that all the people of our dominions were members of the Catholic Church; yet we humbly thank Almighty God, it is and has of long time been our constant sense and opinion (which upon divers occasions we have declared) that conscience ought not to be constrained nor people forced in matters of mere religion: it has ever been directly contrary to our inclination, as we think it is to the interest of government, which it destroys by spoiling trade, depopulating countries, and discouraging strangers, and finally, that it never obtained the end for which it was employed. And in this we are the more confirmed by the reflections we have made upon the conduct of the four last reigns. For after all the frequent and pressing endeavours that were used in each of them to reduce this kingdom to an exact conformity in religion, it is visible the success has not answered the design, and that the difficulty is invincible.

We therefore, out of our princely care and affection to all our loving subjects, that they may live at ease and quiet, and for the increase of trade and encouragement of strangers, have thought fit by virtue of our royal prerogative to issue forth this our declaration of indulgence, making no doubt of the concurrence of our Two Houses of Parliament when we shall think it convenient for them to meet.

In the first place, we do declare that we will protect and maintain our archbishops, bishops, and clergy, and all other our subjects of the Church of England in the free exercise of their religion as by law established, and in the quiet and full enjoyment of all their possessions, without any molestation or disturbance whatsoever.

We do likewise declare that it is our royal will and pleasure that from henceforth the execution of all and all manner of penal laws in matters ecclesiastical, for not coming to church, or not receiving the Sacrament, or for any other nonconformity to the religion established, or for or by reason of the exercise of religion in any manner whatsoever be immediately suspended; and the further execution of the said penal laws and every of them is hereby suspended.

And to the end that by the liberty hereby granted the peace and security of our government in the practice thereof may not be endangered, we have thought fit, and hereby straitly charge and command all our loving subjects, that as we do freely give them leave to meet and serve God after their own way and manner, be it in private houses or places purposely hired or built for that use, so that they take especial care that nothing be taught or preached

amongst them, which may any way tend to alienate the hearts of our people from us or our government, and that their meetings and assemblies be peaceably, openly, and publicly held, and all persons freely admitted to them, and that they do signify and make known to some one or more of the next justices of the peace what place or places, they set apart for those uses, and that all our subjects may enjoy such their religious assemblies with greater assurance and protection-we have thought it requisite, and do hereby command, that no disturbance of any kind be made or given unto them, under pain of our displeasure, and to be further proceeded against with the utmost severity.

And forasmuch as we are desirous to have the benefit of the service of all our loving subjects, which by the law of nature is inseparably annexed and inherent in our royal person, and that none of our subjects may for the future be under any discouragement or disability (who are otherwise well inclined and fit to serve us) by reason of some oaths or tests that have been usually administered on such occasions, we do hereby further declare, that it is our royal will and pleasure that the oaths commonly called "The oaths of supremacy and allegiance," and also the several tests and declarations mentioned in the Acts of Parliament made in the five-and-twentieth1 and thirtieth years of the reign of our late royal brother, King Charles II., shall not at any time hereafter be required to be taken, declared, or subscribed by any person or persons whatsoever, who is or shall be employed in any office or place of trust, either civil or military, under us or in our government. And we do further declare it to be our pleasure and intention from time to time hereafter, to grant our royal dispensations under our great seal to all our loving subjects so to be employed, who shall not take the said oaths, or subscribe or declare the said tests or declarations in the above-mentioned Acts and every of them.

And to the end that all our loving subjects may receive and enjoy the full benefit and advantage of our gracious indulgence hereby intended, and may be acquitted and discharged from all pains, penalties, forfeitures, and disabilities by them or any of them incurred or forfeited, or which they shall or may at any time hereafter be liable to, for or by reason of their nonconformity, or the exercise of their religion, and from all suits, troubles, or disturbances for the same; we do hereby, give our free and ample pardon unto all nonconformists, recusants, and other our loving subjects, for all crimes and things

1 The Test Act, p. 39.

committed or done contrary to the penal laws, formerly made relating to religion, and the profession or exercise thereof; hereby declaring that this our royal pardon and indemnity shall be as good and effectual to all intents and purposes, as if every individual person had been therein particularly named, or had particular pardons under the great seal, which we do likewise declare shall from time to time be granted unto any person or persons desiring the same; willing and requiring our judges, justices, and other officers to take notice of and obey our royal will and pleasure herein before declared.

And although the freedom and assurance we have hereby given in relation to religion and property might be sufficient to remove from the minds of our loving subjects all fears and jealousies in relation to either, yet we have thought fit further to declare that we will maintain them in all their properties and possessions, as well of church and abbey lands, as in any other their lands and properties whatso

ever.

Given at our court at Whitehall the fourth day of April, 1687, in the third year of our reign.

II

ORDER IN COUNCIL

It is this day ordered by his Majesty in Council, that his Majesty's late gracious declaration, bearing date the 27th of April last, be read at the usual time of divine service, upon the 20th and 27th of this month, in all churches and chapels within the cities of London and Westminster, and ten miles thereabouts; and upon the 3rd and 10th of June next, in all other churches and chapels throughout this Kingdom. And it is hereby further ordered, that the right reverend the bishops cause the said declaration to be sent and distributed throughout their several and respective dioceses, to be read accordingly. (London Gazette, May 7, 1688.)

III

THE BISHOP'S PROTEST

"We are not averse to the publishing of the Declaration, out of want of due tenderness towards Dissenters, with whome wee shall be willing to come to such a temper as shall be thought fitt when the matter comes to be settled and considered in parl'mt. But the Declaration being founded on such a dispensing power, as may at pleasure sett aside all law, ecclesiastical or civill, appears to us illegall,