Томас Бабингтон Маколей - The History of England, from the Accession of James II — Volume 2

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.

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 consented 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." 82 Конец ознакомительного фрагмента. Текст предоставлен ООО «ЛитРес». Прочитайте эту книгу целиком, купив полную легальную версию на ЛитРес. Безопасно оплатить книгу можно банковской картой Visa, MasterCard, Maestro, со счета мобильного телефона, с платежного терминала, в салоне МТС или Связной, через PayPal, WebMoney, Яндекс.Деньги, QIWI Кошелек, бонусными картами или другим удобным Вам способом. 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. 83 Конец ознакомительного фрагмента. Текст предоставлен ООО «ЛитРес». Прочитайте эту книгу целиком, купив полную легальную версию на ЛитРес. Безопасно оплатить книгу можно банковской картой Visa, MasterCard, Maestro, со счета мобильного телефона, с платежного терминала, в салоне МТС или Связной, через PayPal, WebMoney, Яндекс.Деньги, QIWI Кошелек, бонусными картами или другим удобным Вам способом.

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. 84 Конец ознакомительного фрагмента. Текст предоставлен ООО «ЛитРес». Прочитайте эту книгу целиком, купив полную легальную версию на ЛитРес. Безопасно оплатить книгу можно банковской картой Visa, MasterCard, Maestro, со счета мобильного телефона, с платежного терминала, в салоне МТС или Связной, через PayPal, WebMoney, Яндекс.Деньги, QIWI Кошелек, бонусными картами или другим удобным Вам способом. The Attorney General, Sawyer, was ordered to draw warrants authorising 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 this 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." 85 Конец ознакомительного фрагмента. Текст предоставлен ООО «ЛитРес». Прочитайте эту книгу целиком, купив полную легальную версию на ЛитРес. Безопасно оплатить книгу можно банковской картой Visa, MasterCard, Maestro, со счета мобильного телефона, с платежного терминала, в салоне МТС или Связной, через PayPal, WebMoney, Яндекс.Деньги, QIWI Кошелек, бонусными картами или другим удобным Вам способом. 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 insignificant man, who had no qualification for high employment except servility, was appointed Solicitor.

The preliminary arrangements were now complete. There was a Solicitor General to argue for the dispensing power, and twelve Judges to decide in favour 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 authorising 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 defendant'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 be no reasonable doubt that the dissenting Judge was, like the plaintiff and the plaintiff's counsel, acting collusively. It was important that there should be a great preponderance of authority in favour 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. 86 Конец ознакомительного фрагмента. Текст предоставлен ООО «ЛитРес». Прочитайте эту книгу целиком, купив полную легальную версию на ЛитРес. Безопасно оплатить книгу можно банковской картой Visa, MasterCard, Maestro, со счета мобильного телефона, с платежного терминала, в салоне МТС или Связной, через PayPal, WebMoney, Яндекс.Деньги, QIWI Кошелек, бонусными картами или другим удобным Вам способом.