May

3.

catechism, the canons, and the homilies. His opponent again inquired whether every thing contained in these five books were part and parcel of the protestant religion? If so, then it must be contended that their authors were infallible, and had laid down nothing which ought to be rejected or reformed. If not, then the ob

jection recurred: the precise limits of the protestant religion were unknown, and no man could conscientiously bind himself by oath never to alter a system, with the real extent of which he was unacquainted. To escape from the difficulty, the words, "now established by law "in the church of England," were added.

From the government of the church, the debate proceeded to the government in the state. Here the opponents of the measure renewed the struggle with equal obstinacy. Were the civil institutions of the country so perfect as to admit of no improvement? Could no combination of circumstances ever occur to make some alteration expedient? Let the house give its sanction to this part of the oath, and the chief privilege of the peerage was gone for ever. They might assemble and vote supplies; but to legislate on any subject connected with the government of the country would be a violation of the test. They must abandon their duty as a part of the legislature, or perform it under the guilt of perjury.

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At length, after a variety of amendments and adjournments, divisions and protests, the declaration and oath were passed in the committee, in the following improved form. I, A. B., do declare that it is not lawful, on any pretence whatsoever, to take up arms against the king; and I do abhor the traitorous position of taking arms by his authority against his person or against "those that are commissioned by him according to law, "in time of rebellion and war, and acting in pursuance "of such commission. I, A. B., do swear that I will not "endeavour any alteration of the protestant religion now established by law in the church of England, nor "will I endeavour any alteration in the government, in

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A.D. 1675.] DISPUTE RESPECTING APPEALS.

65

"church or state, as it is by law established." There only remained to determine the penalty of a refusal to take the test, which, in defiance of all the efforts of the opposition, was fixed at a fine to 500%., and incapacity to hold office or commission under the crown. But, as this incapacity did not affect the right of sitting in either house, the members of both were made subject to a repetition of the fine in every succeeding parliament*.

To retard the progress of the bill, had been the great object of the country party in the house of lords; to throw it out, was to be the achievement of their associates in that of the commons. But even there much had lately happened to shake their confidence in their own power: the fate of the impeachment of Danby, and the rejection of a bill to prevent members from accepting places under government, had convinced them that the ministers could command the votes of many secret, but faithful, adherents. To relieve them from their apprehensions, an event occurred which, if it were not, as is probable, originally contrived, was at least most dexterously improved, to suspend the course of ordinary business in both houses, and to provoke a dissolution, or at least a prorogation of parliament. At all times an appeal by writ of error lay from the decisions in the courts of law to the house of lords, as the supreme judicature in the nation; and, during the reign of James I., similar proceedings had been introduced relative to judgments in chancery. It happened that at this period the defendants in three of these appeals to the justice of the lords possessed seats in the house of commons; and when notice to appear was served on sir John Fagg, one of the three, the house voted such a notice a breach

For this important debate, see the Lords' Journals, xii. 665. 9. 671. 3, 4. 7. 682. Parl. Hist. iv. 7. 4. 721. App. xviii. xlvii. Burnet, ii. 71. 4. Marvell, i. 510. 8. North, 62. The test was originally devised by Clarendon but his son, who on the death of the exile had succeeded to the title, constantly opposed it. His name is in all the protests entered on the journals; and the king was so displeased with his conduct, that he deprived him of his place of chamberlain to the queen. Marvell, i. 227. VOL. XII.

F

May of privilege.

5.

The lords insisted on their claim.

Theirs was the only court to decide on writs of error or appeal; they sate only at the same time with the house of commons; and therefore, if they could not hear causes in which the members of that house were parties, a denial of justice must follow. The commons disputed the inference-it might be a suspension, but not a denial of justice the appeal, might be heard, when the parties were no longer entitled to the privilege of parliament. Nothing could be weaker than such reasoning; but they compensated for its weakness by the vigour of their 12. conduct. They committed to the Tower, Shirley and 15. Stoughton, two of the appellants; resolved that to pro

secute in the house of lords any cause against a member 28. of their house was a breach of privilege; declared that

no appeal lay from the courts of equity to any other triJune bunal; and voted that four barristers, who, by order of 1. the lords, had pleaded before them in one of the appeals, should be taken into custody. This last insult set the higher house in a flame; and the opponents of the test, whose real aim was to foment the quarrel, were the fore2. most to defend the rights of the peerage. The captive barristers were rescued by the usher of the black rod from the grasp of the sergeant-at-arms, who suddenly absconded, that he might escape the punishment with which the house of commons had determined to visit his pusillanimity or negligence. Two days afterwards, the speaker, as he passed through Westminster hall, arrested Pemberton, one of the barristers, and took his prisoner with him to his chamber*; the new sergeant at arms brought the other three out of the court of king's bench, and all four were conveyed to the Tower. The

4.

• Burnet (but to Burnet alone little credit is due) tells us, that Seymour the speaker was "the most immoral, and impious man of the age, "the unjustest and blackest man that lived in his time." Of his pride, an instance is related by lord Dorchester, that when his carriage broke down near Charing-cross, he took possession of the first gentleman's carriage that came by, and turned out the owner, telling him, it was more proper that he, than the speaker of the house of commous, should walk in the street. Burnet, ii. 70, note.

A.D. 1675.]

PROROGATION.

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house of lords was not slow to undertake their protection. A message was sent to the lieutenant to set them at liberty, and, when he demurred, four writs of habeas June corpus were forwarded by the lord-keeper, commanding 7. him to produce his prisoners before the king in his high court of parliament. The lieutenant was perplexed. 8. He consulted the house of commons, which forbade him to obey the writs; and, in this choice of evils, he preferred, as the less dangerous, to incur the displeasure of the lords*.

During the altercation, Charles had addressed both 5. houses in the tone, and with the dignity, of a master. They were, he told them, the dupes of men, enemies to him and to the church of England: the authors of the quarrel sought not the preservation of privilege, but the dissolution of parliament: let the two houses confer coolly and dispassionately together; they would easily discover the means of reconciliation, or, if they did not, he would judge impartially between them, for he could not sit a silent spectator of a dispute which threatened to spread itself through the nation, for a mere question of privilege. But his advice was disregarded; the irritation of the parties was nourished by repeated acts of mutual defiance; and the king, to suspend the prosecu- 9. tion of the quarrel, prorogued the parliament.

Though Charles in his speech made no allusion to his Oct. own wants, yet his promise, to meet them again in a short 13. time, led to a suspicion that the government was reduced to the lowest state of pecuniary distress; and the leaders of the country party resolved to persist in their plan of opposing a supply, with the hope of provoking a dissolution of the ministry, or of the parliament. The first would offer to their ambition the offices held by their opponents, the latter would be succeeded by a general election, in

L. Journ. 679. 80. 91. 4. 8. 700. 6. 10. 13. 16. 18. 720. 3. 5. 7. Com. Jouru. May 5. 15. 28; June 1. 4. 8. Marvell, i. 517. Burnet, ii. 75. Parl. Hist. iv. 721. St. Trials, vi. 1121.

+ Com. Journals, June 5. 9. L. Journ. 725. 9.

Oct. which they promised to themselves a decided superiority. 13. The houses accordingly met, and the king solicited the aid of his people to pay off the anticipations on the revenue, amounting to 800,000%., and to put the navy in a condition to maintain the dignity of the British flag *. In the committee on the royal speech, the ministers obOct. tained at first the majority by the casting vote of the 19. chairman. But on a second division they were defeated by a small majority, and the house refused to entertain the question of supply on account of anticipations. This was a severe disappointment; yet Danby did not despond; a long session would afford him the opportunity of appealing to the ambition and cupidity of the members; and it was possible that several might oppose the court now, with the sole view of obtaining a higher price for ther future services. The house proceeded with the public business. It was voted that 400,000l. per annum should be taken from the customs, and applied to the maintenance of the navy; that a sum of 300,000%. should be raised and placed in the chamber of London, and be appropriated to the building of twenty ships of war; that papists should be disabled from sitting in either house of parliament; that a bill should be introduced to recall the English forces serving in the French army; and that a remedy should be devised to prevent bribery in elections. In the divisions which these questions produced, the balance inclined alternately in favour of the opposite parties; and the majorities were so trifling, that it was impossible to foresee which would ultimately obtain the superiority. In the house of lords, Shirley hastened to revive the question of his appeal. Each party sought to cast on the other the odium of the measure; but the subsequent proceedings shew that the appellant acted under the advice, or by the instigation of Shaftesbury and his friends. In the debate, which

20.

The reader is aware that it was the custom to "anticipate," that is, to mortgage, certain branches of the revenue for the payment of the capital and interest of loans of money.

† Com. Journals, Oct. 19. Parl. Hist. iv. 751-7. Marvell, i. 252-68.