Revolution

EATING A TURD PIE – THE CHURCH, THE LAW AND THE DISSENTERS

We have seen that in the face of opposition from the traditional allies of the crown the court began to woo Protestant nonconformists in the hope of forging an alliance between Catholics and dissenters around a shared goal of religious toleration. For Anglican opponents of James, it became essential to break this alliance, and to persuade the dissenters that their interests would be better served by forming a common Protestant front with the Established Church in the face of the Catholic menace. They faced two major intellectual problems: how to justify opposing James's initiatives in a way that could appear consistent with their professed commitment to the principles of non-resistance and passive obedience; and how to convince the dissenters that, despite the Church's track record of religious intolerance, they would ultimately prove better friends to dissent than the Catholics. Court apologists, on the other hand, needed to prevent any wavering of support from the Protestant nonconformists and to discredit those Tory Anglicans who refused to comply with the King, though without alienating any remaining Anglican sympathizers if possible.

James was taken aback by the reaction of Tory Anglicans to his initiatives, since he believed that their views on obedience and the unaccountability of the sovereign would result in their total compliance. Even the most ardent champions of irresistible, divine-right monarchy, however, allowed that there were some limits to obedience. To appreciate the logic behind Tory-Anglican non-compliance, we have to be clear about two key doctrines: the doctrine of passive obedience, and the maxim that the king could do no wrong. Although one was supposed to ‘yield obedience’ to the king ‘in all Things’ that were ‘agreeable to God's Commands’,⁴ the Church had always held that if the king commanded something that was contrary to God's law, one had to obey God rather than man.⁵ One should not commit an immoral act even if commanded to do so by the king. Nor should one violate one's oaths – since perjury was a sin as well as a crime – or go against one's conscience. Nevertheless, one could not resist the king, and one had to accept whatever punishment was meted out for non-compliance. Thus the fellows of Magdalen College had no option but to stand up to James II, but they also accepted the consequences, namely ejection from their fellowships. This was a classic example of the application of the principle of passive obedience, although in modern-day parlance it might more accurately be styled passive disobedience.

Yet what if the sovereign asked you to do something that was against the positive law of the land, though not necessarily against God's law? Or if the king himself promoted an illegal act and it was your responsibility, by dint of the office you held, to see that the law was enforced? It was a fundamental maxim of English law that the king could do no wrong. What this meant, however, was that the law knew no means of holding the king accountable for any wrong that he committed: it was impossible to sue or prosecute the king. It did not mean that nothing that the king ever did could be wrong (or that the crown could not commit an illegal act); it meant that if any wrong were done in the name of the king, it was those who had advised him or acted in his name who were accountable. As one contributor to the pamphlet debate over the Indulgence pointed out, rehearsing the arguments of William Sherlock's famous tract on non-resistance of 1684, although the king was ‘not bound in his own person to observe the Laws as Subjects are, because no body has any jurisdiction over him but himself’, in a limited monarchy such as England's, subjects were ‘bound to yield an active obedience only according to Law’. Indeed, it was ‘very dangerous’, this author contended (quoting Sherlock), ‘for any Subject to serve his Prince contrary to Law’, for ‘though the Prince himself is unaccountable and irresistible, yet his Ministers may be called to an account, and be punisht for it’. Even if these ministers escaped punishment under the present king, they could be held accountable ‘under the next Prince’, which should make ‘all Men wary how they serve their Prince against Law’.⁶

In short, a maxim designed to ensure the legal immunity of the crown at the same time kept the king within the bounds of the law by placing an obligation on the crown's servants not to violate the law in the king's name. If a judge wrongly advised the king that he had the power to dispense with a law, the judge could be held accountable. If Catholics illegally sought to erect chapels for the public celebration of the mass, local magistrates and other law-enforcement agents were obliged to shut them down, regardless of whether or not the king had wanted the Catholic chapels erected in the first place. What should one do, then, if one were a local magistrate, sworn to uphold all the laws currently in force, when faced with a royal declaration suspending all the penal laws against religious nonconformists? Since the penal laws had not been formally repealed by act of parliament, and since Charles II had seemingly acknowledged that the crown did not possess the ability to suspend ecclesiastical laws, then, arguably, one was obliged to continue to enforce those laws until it had been established beyond any legal doubt that their operation had been suspended. Moreover, law enforcement in England was not just the responsibility of magistrates and parish constables. It was the duty of all subjects to assist magistrates and constables in enforcing the law when called upon to do so; if one witnessed a theft or a mugging, one was supposed to come to the victim's aid or help apprehend the criminal. Some laws – such as those against religious conventicles – positively encouraged ordinary subjects to participate in a law-enforcement role by offering rewards for informers. So what was one supposed to do when one saw a group of Catholics illegally assembling for the celebration of the mass? And how was a militia officer or a member of the trained bands supposed to act when ordered by the king to guarantee the ability of Catholics to worship in public even though this was palpably against the law?

The type of opposition to James's initiatives from Tory-Anglican interests that we have encountered so far accorded well with the Church's stance on non-resistance and passive obedience and conventional constitutional thinking about the king's unaccountability. Whether that remained the case as James's regime veered ever more deeply into crisis – and especially in the wake of William's invasion in the autumn of 1688 – is more questionable. We shall see, as this chapter and the next unfold, that conventional Anglican beliefs about the irresistibility of the sovereign came increasingly under strain. What we need to be alert to, therefore, is where the potential for movement in Anglican views on resistance came from. We find it in the increasing emphasis placed on the obligation to be obedient to the rule of law and even to uphold the rule of law in the face of a sovereign who sought to violate it.

In the face of Anglican non-compliance with James's initiatives, court apologists were quick to accuse members of the Established Church of disloyalty and hypocrisy. As one satire, supposedly written from the perspective of a Church spokesman, put it in 1687: ‘whilst the Government takes our Measures, and advances our Interest, we can be very Loyal’; but ‘if our Purposes be cross'd’, we can ‘drop the Doctrine of Passive Obedience, and leave Non Resistance to shift for itself’, and act like ‘the Tribe of Forty One it self’.⁷ A New Test of the Church of England's Loyalty, a Catholic piece of the same year, wondered how the Church of England ‘dare appropriate to Themselves alone the Principles of true Loyalty’. It was true that Church of England Protestants had been loyal to Charles I during the Civil War, but only out of self interest, whereas the Catholics had been loyal even though they had had nothing to gain whether Charles won or lost. Church of England Protestants, on the other hand, had never been loyal under Catholic rulers: they had set up Lady Jane Grey in opposition to Mary Tudor's succession; ‘barbarously murder'd’ Mary, Queen of Scots, ‘the undoubted Queen of Scotland… and the Lawful Heir of the Crown of England’; and were now again ‘standing out in opposition to their Sovereign’, because he was ‘of another Religion’. The author ended by warning that if the Church of England did not ‘cchange her old Principles of Loyalty’, she must expect to for-feit ‘her Claim to that Royal Protection, which was promis'd upon the account of her constant Fidelity’.⁸ Bishop Cartwright of Chester similarly warned that the Church could not expect ‘to be back'd or countenanc'd any longer by the king's civil Authority’ if it denied James and his co-religionists ‘the free Exercise of their own Religion’.⁹

Anglican apologists deeply resented the imputation of disloyalty. Only the Church of England ‘did constantly maintain the Doctrine of Non-resistance to the Supream Magistrate and practice according to it’, one responded, whereas the Catholics supported the Pope's power to depose heretical kings.¹⁰ Gilbert Burnet, in his answer to the New Test, wondered what better testimony to the Church's loyalty there could be than the facts that its members had defended James's ‘Right of Succession, with so much Zeal, that she… [had] put her self in the power of her Enemies’, voted the King a vast revenue at the time of his accession, and supported the Catholic monarch against the threat of the Monmouth rebellion. Burnet scorned the notion that the Catholics were more loyal, pointing to the example of the Irish Rebellion of 1641. But the Church's principles of loyalty, Burnet continued, did not mean that in gratitude for the King's promise of protection Protestants should willingly ‘throw up the Chief Security’ the Church had ‘in her Establishment by Law’ and agree to the repeal of the penal laws and Test. ‘God and the Laws hath given us a legal Security, and His Majesty has promised to maintain us in it’, Burnet clarified, ‘and we think it argues no Distrust, either of God, or the Truth of our Religion, to say, that we cannot by any Act of our own, lay our selves open, and throw away that Defence.’ In response to the threat that the King would withdraw his protection, Burnet insisted that ‘the Laws gave the Church of England a Right to that Protection, whether His Majesty had promised it or not’.¹¹ The defrocked Anglican clergyman Samuel Johnson, in his answer to the New Test, maintained that ‘the word Loyal’ was ‘a term of Law’: ‘a Loyal Judgment’ was ‘a Judgment according to Law’, and ‘a Loyal Man’ someone who ‘behaves himself according to Law, and observes the Laws of the Land’. Both prince and people were mutually sworn to keep the law, and ‘our Allegiance’, Johnson claimed, ‘binds us to an Obedience according to Law, and no otherwise’. It followed that ‘to obey the King himself contrary to Law is Disloyalty, and to disobey the King in Obedience to the Laws is Loyalty’, and thus ‘the Church of England's carriage and behaviour’ was justified, since ‘it has been according to the Laws of the Land’. It was therefore wrong to claim that the Church of England could not expect protection until it changed its principles of loyalty, ‘for a Legal Establishment has a Right to a Legal Protection, and the King is bound both by his Oath, and by the duty of his Kingly Office, to Protect the Church of England as it is by Law established’.¹² Both Burnet and Johnson, it must be conceded, were that rare breed, namely Whig clergymen; nevertheless, they still had to make their arguments appear consistent with the teachings of the Established Church.

The most challenging dilemma Anglicans faced as a result of James's Declaration of Indulgence was how to deal with the dissenters. Anglicans could scarcely sit back and support the suspension of the penal laws and the Tests which they for so long had been arguing were essential to preserve the Church from the double threat of popery and religious fanaticism. Besides, many had come to feel that the persecutions of the 1680s had been successful in healing the schism, by forcing dissenters to return to the Church; they were unlikely to rejoice now the floodgates were open and dissenters had started rushing to conventicles. Yet at the same time they were aware that if James were successful in forging an alliance between the Catholics and the dissenters around the shared goal of religious toleration, gone would be their privileged position as the Established Church, and their ability to sustain what they took to be the true faith would be seriously undermined. They therefore needed to convince the dissenters that they would be better off rejecting James's toleration and supporting the Established Church in its efforts to resist the Catholic menace. This was no easy task, given the Church's stance on dissent under Charles II, something that supporters of James's plans for toleration were quick to recall. The Quaker William Penn asked ‘what security’ the Church of England could give Protestant dissenters ‘that she will not do what she fears from Popery [i.e. engage in religious persecution], when she has a Prince of her own Religion upon the Throne’, given that she ‘has made so fair a progress these last six and twenty Years in ruining families, for Non-conformity’? He also ridiculed the Church's claim to be ‘afraid of Popery, because of its Violence’, since the Church in its turn sought to protect itself by force: was this not ‘resisting Popery with Popery’?¹³ Others insisted that the Anglican clergy's lukewarm response to the Declaration of Indulgence showed that they were still in favour of enforcing the penal laws, and that the Church was troubled ‘to see all Christians peaceably professing their Religion, without any possibility of Vexation from their Neighbours’ because she ‘took pleasure in Wracking of Consciences’ and ‘Persecuting and Imprisoning’.¹⁴

Anglicans remained deeply ambivalent in their attitudes towards dissent in the aftermath of James's Indulgence. Some were prepared to reach out and make some sort of compromise to keep the dissenters on their side. For example, Bishop Lake of Chichester, upon the issuance of James's Indulgence, decided ‘to translate the Sermon into the body of the Church’ – a Puritan position, though not strictly speaking ‘against the letter of the Rubric’ – protesting to his archbishop that the move resulted in ‘such an appearance of the most considerable Dissenters in this City’ that he hoped his Grace would not be displeased.¹⁵ Shortly after, Lake preached a sermon in which he expressed his concern about ‘the danger of Popery’, and suggested that the only remedy was to relax and remit ‘those points of Conformity and Ceremony’ that had caused the breach with the nonconformists, in order to form ‘a Coalition with them’.¹⁶ Other Church spokesmen, however, denounced the dissenters for perpetuating the separation and thereby helping to strengthen ‘the hands of the Papists’, and claimed that the dissenters' support for the Indulgence justified ‘the imputations… laid upon them as a people that would helpe to bring in Popery’.¹⁷ Some Anglican zealots were determined not to allow the dissenters a peaceful toleration, but thought the law must be enforced despite the King's Indulgence. Thus at York, in February 1688, locals riotously disturbed two nonconformist meetings; in March 1688 an Essex parson preached a series of sermons justifying ‘the Lawfulness of prosecuting Dissenters’; at Mildenhall, in neighbouring Suffolk, a nonconformist preacher was threatened with prosecution under the 1670 Conventicle Act; while at Sandwich in Kent, at the end of March and the beginning of April, ‘some Malicious Envious Spirits’ made a couple of assaults on the local meeting-house, breaking the door off the hinges on one occasion (leaving it in a local stream) and smashing a new glass window on the other.¹⁸

One of the earliest pamphlets aimed at persuading dissenters not to throw in their lot with the Catholics was Gilbert Burnet's Ill Effects of Animosities among Protestants in England Detected. Despite being published with 1688 on its title-page, it was circulating in England by early May 1687 ¹⁹ and seems to have been written prior to the Declaration of Indulgence, during the period when Catholics enjoyed effective toleration but dissenters were still having to petition the crown for relief from the penal laws. Burnet, by this time, was in self-imposed exile – having chosen to leave England at the beginning of James II's reign, travelling first to France and then through Switzerland and Germany before settling in the Netherlands in May 1686, when the Prince of Orange invited him to live in The Hague. The work was thus an early piece of Orangist propaganda and bears outlining in some detail.

The tract begins by explaining how, ever since the Restoration, both Charles II and his brother had sought to foster divisions among Protestants in order to pursue their design of promoting popery and arbitrary government. The conformists had done terrible things to the dissenters as a result, Burnet admitted, but had now become ‘enlightned’. The dissenters should be careful, however, not to do anything to help the papists destroy the Established Church. Protestant nonconformists were a small minority, who would not be able to defend the Protestant religion by themselves if the Church of England were overthrown; it was therefore both their interest and duty ‘to help maintain and defend’ the Established Church. In particular, Burnet implored the dissenters ‘not to be accessory to any thing, through which the legal Establishment of the Church of England may by any Act of pretended Regal Prerogative be weakned and supplanted’. Although he could understand why they might be tempted ‘to petition the King to suspend the execution of the Penal Laws’ or to give them dispensations for their meetings, they should realize that this was what the court wanted them to do, and they ought not ‘betray the Kingdom and sacrifice the legal constitution of the Government to the Lust and Pleasure of a Popish Prince, whom nothing less will serve than being Absolute and Despotical’. Besides, ‘the Fanatics’ could not be ‘so far void of sense’ as to believe James bore them any good will; once he had established ‘himself into a Supremacy and Absoluteness over the Law’ so that he could ‘subvert the established Religion, and set up Popery’, he would soon resume persecuting the dissenters.²⁰

The dissenters could rest assured, Burnet insisted, that the Church of England was committed to upholding the Protestant religion, together with England's laws and liberties. The conformists knew as well as any, he proclaimed, ‘that the giving to Cesar the things that are Cesar's’ placed them ‘under no obligation of surrendering unto him the things that are God's, nor of sacrificing unto the will of the Soveraign the priviledges reserved unto the people by the Fundamental Rules of the Constitution, and by the Statutes of the Realm’. They also understood that ‘the Laws of the Land’ were ‘the only measures of the Prince's Authority, and of the Subjects' Fealty’ – ‘where they [the laws] give him [the prince] no Right to command, they [his subjects] lay them under no tye to obey’ – and observed how it was the ‘Theologues and Gentlemen of the Church of England’ who had ‘generally and with greatest honor appeared for our Laws and Legal Government against the Invasions and Usurpations of the Court’. Although the high-Anglican clergy in recent years had upheld the doctrine of passive obedience, ‘as they absurdly put it’, and insisted that all that subjects could do in the face of royal tyranny was ‘tamely to suffer’, there were many clergy and lay Anglicans, Burnet said, who were far from being infected with those ‘brutish Sentiments and Opinions’, although they had been ‘branded with the name of conformable Fanaticks’. Burnet then went on to make the remarkable claim that those of the Church of England knew how far they stood ‘bound to a Prince on the Throne’ – the allusion to James II was transparent – ‘who by transgressing against the Laws of the Constitution, hath abdicated himself from the Government, and stands virtually deposed’, since ‘by the Fundamental, Common and Statute Laws of the Realm, we know none for Supreme Magistrate and Governor, but a limited Prince, and one who stands circumscribed and bounded in his Power and Prerogative’. (Note the idea that James might have ‘abdicated himself from the Government’ by dint of the fact that he had violated the constitution: it was to be taken up again over the winter of 1688/9.) Burnet did not at this time make a specific call for resistance. He did, however, recall that the Established Church had always defended the armed resistance of the Dutch against the kings of Spain.²¹ He also offered up the prospect of both comprehension and religious toleration ‘were England immediately to be rendered so happy as to have a Protestant Prince ascend the Throne, and to enjoy a Parliament duely chosen, and acting with freedom’. Thus ‘should it please Almighty God’, he added, ‘through denying Male Issue to the King, to bring the Princess of Orange to the Crown’, the Church of England could still expect to be ‘preserved and upheld as the National Establishment’, but ‘all other Protestants may very rationally promise themselves an Indulgence’.²²

In other writings, Burnet warned dissenters not to be taken in by the Indulgence, since Catholicism was a persecuting religion and the Papists would trust the dissenters no longer than they had occasion to use them; he even sought to remove the stigma of persecution from the Established Church by insisting that it was the court that had set the persecution in motion.²³ Another author insisted that the Church of England realized the iniquity of persecuting people simply on account of their religious beliefs, and wanted to secure liberty of conscience by law – though the papists would still be excluded from such a toleration, for popery was not merely a religion but ‘a Conspiracy against the Peace of Societies, and the Rights of Mankind’, since the pope claimed the right to depose kings and absolve subjects from their due allegiance.²⁴

On the nonconformist side, the man who proved most determined to dissuade the nonconformists from throwing in their lot with James II was the fiery Scottish independent divine Robert Ferguson – the erstwhile chaplain to the first Earl of Shaftesbury and both a Rye House plotter and a Monmouth rebel – who, like Burnet, was now in exile in the Low Countries. In a work that appeared in the summer of 1687 (its postscript reveals that it was written before James issued his follow-up Scottish Indulgence of 28 June but published shortly thereafter), Ferguson berated those nonconformists who had welcomed James's toleration: ‘Tis matter of a melancholy consideration, and turns little to the credit of Dissenters’, he bemoaned, ‘that when they of the Church of England… are thro being at last enlightned in the designes of the Court’ as to ‘recover their witts… there should be a new Tribe of men muster'd up to stand in their room, and who by their vows and Promises made to the King in their Addresses, have undertaken to perform, what others have the Conscience, and Honesty, as well as the Wisdom, to refuse and decline.’ Ferguson was adamant that ‘none ought to be persecuted for their Consciences towards God in matters of Faith and Worship’, asserting (in a way that echoed the position of the Levellers in the late 1640s) that liberty of conscience was not ‘one of those things that lye under the power of the Sovereign and Legislative Authority, to grant or not to grant’, but rather that it was ‘a Right setled upon Mankind antecedent to all Civil Constitutions and Humane Laws, having its foundation in the Laws of Nature, which no Prince or State can legitimately violate and infringe’. (The Catholics remained an exception, since ‘Governors may both deny Liberty to those whose principles oblige them to destroy those that are not of their mind’ and regulate the liberty of those whose opinions were ‘erroneous and false’ and therefore ‘dangerous to the Soules of men’.) Nevertheless, the fact ‘That Liberty ought to be allowed to men in matters of Religion’ was no justification for kings ‘giving it in an illegal and Arbitrary manner’. Fortunately, Ferguson pointed out, there were ‘many Dissenters’ who had preserved themselves ‘innocent at this juncture’ and not succumbed to temptation, adding that he hoped ‘the Nation’ would ‘be so ingenuous, as not to impute the miscarriages of some of the nonconformists, to the whole party, much less to ascribe them to the principles of Dissenters’, as if to try to shame those who had initially welcomed the Indulgence into rethinking whether they really wanted to make themselves complicit in James's attempts to establish arbitrary government.²⁵

Not that Ferguson was particularly soft on the Established Church. ‘Had it not been for many of the Church of England’, he complained, ‘who stood up with a zeal and vigour for preserving the succession in the right line, beyond what Religion, conscience, Reason, or Interest could conduct them unto’, Charles II could never have ‘out-wrestled the endeavours of three Parliaments for excluding [the Duke of York] from the Imperial Crown of England’. Furthermore, ‘had it not been for their abetting and standing by him with their swords in their hands upon the Duke of Monmouth's descent into the Kingdom anno 1685, he could not have avoided being driven from the Throne’.²⁶ Indeed, Ferguson was to go on to offer an explicit justification of resistance. Thanking God that he was ‘not tainted with that slavish and adulatory doctrine’ of passive obedience, he pronounced that he had ‘always thought that the first duty of every member of a Body politick’ was ‘to the Community, for whose safety, and good, Governors [were] instituted’. It followed that ‘the Rules of the Constitution and the Laws of the Republick or Kingdom’ were ‘to be the measures both of the Soveraign's Commands, and of the Subjects’ obedience; and that as we are not to invade what by concessions and stipulations belongs unto the Ruler, so we may not only lawfully, but we ought to defend what is reserved to our selves, if it be invaded and broken in upon’. For ‘without such a Right in the Subjects, all legal Governments, and mixt Monarchies, were but empty Names and ridiculous things'.²⁷ In short, Ferguson couched his appeal to the dissenters with an explicit defence of the right – and even duty – of subjects to resist rulers who acted illegally.

The most famous appeal to the dissenters to appear in print at this time was the Marquis of Halifax's Letter to a Dissenter, written in August 1687. It immediately attracted a great deal of attention. ‘One of the most admired peces, for stile, close reasoning and Expression that [had] appeared abroad for a long time’, according to one contemporary, its price soared from a mere 3d on the first day of publication, to 6d on the second, and subsequently to 5 shillings; by the end of October some 20,000 copies were in print, and the tract had soon gone through six editions.²⁸ As the government propagandist Henry Care observed, Halifax's Letter spread ‘industriously’ and was soon to be found in every ‘Corner of the Land’.²⁹ Halifax's tone, however, was admonitory rather than conciliatory. He informed the dissenters that it was their ‘Duty… not to hazard the publick Safety, neither by desire of Ease, nor of Revenge’. They should consider that their ‘new Friends’, the Catholics, did not make them ‘their Choice, but their Refuge’; the Catholics had always ‘made their first Courtships to the Church of England’ and had turned to the dissenters only ‘when they were rejected there’. In fact, the principles of the Church of Rome were fundamentally against liberty of conscience, and the dissenters were ‘to be hugged now’ so that they might ‘be the better squeezed at another time’. Halifax chastised the dissenters for giving thanks for the Indulgence and opening up public conventicles, insisting that because ‘the Law is so Sacred… no Trespass against it’ could ‘be Defended’:

To rescue your selves from the Severity of one Law, you give a Blow to all the Laws, by which your Religion and Liberty are to be protected; and instead of silently receiving the benefit of this Indulgence, you set up for Advocates to support it… and look like Counsel retained by the Prerogative against your old Friend Magna Charta, who hath done nothing to deserve her falling thus under your Displeasure.

The dissenters should therefore think twice before going any further, Halifax warned, since ‘the Price… for this Liberty’ was ‘giving up your Right in the Laws’.³⁰

Halifax assured the dissenters that the Church of England had realized its ‘Mistake’ and abandoned ‘all the former Haughtiness’ towards them, turning ‘the Spirit of Persecution, into a Spirit of Peace, Charity, and Condescention’. If the dissenters only waited, they could expect ‘ease and satisfaction’: parliament, whenever it might meet, was ‘sure to be Gentle’ to them, while ‘the next Heir’ had been ‘bred in the Country’ that the dissenters had ‘so often Quoted for a Pattern of Indulgence’. He concluded by insisting that the Church remained committed to the principles of passive obedience and non-resistance. But he expected the present danger would pass away ‘by the natural course of things’, ‘like a shower of Hail’, and ‘fair weather succeed’ – Halifax, after all, was writing before the Queen was to become pregnant with the Prince of Wales. ‘Let us be still, quiet, and undivided, firm at the same time to our Religion, our Loyalty, and our Laws’, he implored, and the Protestants would eventually triumph, unless ‘the Church of Rome, which hath been so long barren of Miracles, should now in her declining Age, be brought to Bed of One that would outdo the best she can brag of’.³¹ These last remarks, of course, contained a fateful irony.

The interest that Halifax's Letter aroused – as evidenced both by the sales it generated and the fact that it provoked fourteen replies³² – has often been taken as a measure of its effectiveness.³³ It seems unlikely, however, that either the tone or the types of arguments Halifax advanced would have won over many dissenters. One Baptist respondent said he was unable to resolve whether Halifax's pamphlet ‘was designed for a Libel upon the Government, or upon the Dissenters; the Reproach of both being carried on with so even a Thread thro' the whole’.³⁴ Another reply to Halifax argued that the dissenters would be foolish to reject James's toleration and trust the Church of England to give them relief at some future date, since one only needed to look at the way those of the Established Church had treated dissenters in the past to know that they were the ones who could not be trusted.³⁵ Penn thought there was not ‘any sort of proof’ in Halifax's Letter ‘that Prelacy [had] changed its thoughts’ and was any more tender towards Protestant nonconformists than before.³⁶ Care agreed there was no sign ‘that the Sentiments of the Church of England towards Dissenters [had] chang'd, unless it be to a greater degree of Malice’, especially when, in some parts of the country, they were continuing to persecute nonconformists.³⁷

Yet if James were to succeed in his attempt to get parliament to repeal not just the penal laws but also the Test Acts, what was to stop parliament being packed with Catholics who would then vote to overturn the Established Church, set up popery, and rescind the toleration of Protestants? To alleviate such concerns, supporters of the court put forward the idea of an equivalent security that could guarantee the protection of the Protestant religion in place of the Tests.³⁸ For instance, Care suggested a number of alternative safeguards. Why not ‘a Civil Test… altogether as effectual, and yet not so obnoxious… as these Religious ones?’ Or what if the same bill that rescinded the penal laws declared liberty of conscience to be ‘part of the Constitution of this Kingdom; The natural Birth-Right of every English-Man’, which it would be a criminal offence to undermine or subvert? If that seemed too extreme, the penal laws and the Test Act of 1673, which debarred Catholics from office, could be repealed, but the Test Act of 1678 relating to MPs kept in force.³⁹ In the early months of 1688 both James and Secretary of State Sunderland showed themselves willing to concede the idea that Catholics should continue to be excluded from parliament, although this was an issue over which James himself was to vacillate.⁴⁰

Ultimately, it is impossible to know what impact the pamphlet debate over the repeal of the penal laws and the Tests had on the group whose allegiance was being sought, the dissenters. The furore over Halifax's Letter undoubtedly helped give his arguments a wider publicity and also to make people aware of the complexities of the issues involved. It was more complicated, dissenters may well have been made aware, than simply being thankful for relief after years of persecution and hoping that parliament would eventually sanction the toleration afforded them. Yet, at the same time, the debate over Halifax's Letter might have served to harden the antagonism between the Established Church and dissent, rather than soften it. If Halifax reproached the dissenters, the dissenters reproached the Church in return. Care began his reply to Halifax with an attack not just on ‘the high-flown Church-men’ who had tried to frighten the gentry by alleging that the Indulgence would ‘blow up the Church of England’, but even on ‘the Latitudinarian Divines’, those with the ‘greatest Credit and Interest among the Non-Cons’, who had sought to ‘bugbear the Dissenters with a noise of the Snake in the Grass’.⁴¹ In early 1688 Roger Morrice reported how Halifax had ‘most highly disobliged the Protestant Dissenters’ and was ‘distrusted and neglected by them’, and was trying to make his peace with the court. James and Sunderland started insinuating that the Church had offered to strike a deal with the court ‘to take off the Penall Lawes and the Test from the Papists if they might be left upon the Protestant Dissenters’, though the King protested he would not ‘Comply with them’. The Church hierarchy vigorously denied this, claiming it was ‘an odious Scandal’ cast upon them to make them odious and increase Divisions'. For the time being, divisions did indeed appear to be increasing.⁴²

A tract that was probably more effective than Halifax's Letter in persuading dissenters not to accept James's Indulgence was Gaspar Fagel's Letter conveying the thoughts of the Prince and Princess of Orange on the question of the repeal of the penal laws and the Tests. James had been trying for some time to get his nephew/son-in-law and daughter to concur with his plans for repeal; the Princess of Orange was still next-in-line to the throne and James was well aware that his efforts to secure toleration for his co-religionists would come to nought if his successor were immediately to reverse his policy. William had already told Penn towards the end of 1686 that, although he disliked religious persecution, he thought the Tests were an essential legal safeguard. Concerted efforts were made over the course of 1687 to get the Prince to change his mind. James Stewart, a Scottish Presbyterian lawyer and former exile who had returned to England and been reconciled with the court, wrote to Fagel – the Grand Pensionary of Holland and William's trusted political ally – with the aim of trying to show that William had no reason to fear the repeal of the Tests, and holding out the prospect that if William agreed, James would break with France. Fagel's response, dated 4 November 1687, was drafted with the compliance of William; published in Dutch, it was also translated into English by Burnet. The English version enjoyed an initial print-run of some 45,000 copies, and was being distributed in England by William's agents by the beginning of 1688.⁴³ Fagel's Letter made it clear that the Prince and Princess of Orange thought ‘no Christian ought to be prosecuted for his Conscience, or be ill used because he differs from the publick established Religion’. The Prince and Princess were even willing to allow Catholics in England, Scotland and Ireland the same liberty they had in the United Provinces, and were therefore ready to give their concurrence to the repeal of the penal laws, provided that the Test Acts excluding them from parliament and public office remained in force, ‘as likewise all those other Laws which confirm the Protestant Religion’. It was essential, however, Fagel's Letter explained, to exclude Catholics from any share in the government, to ensure they could not do anything ‘to the prejudice of the Reformed Religion’. Where they were in power, Catholics had shown that they could never be satisfied just to exclude Protestants from office, but had always sought to ‘suppress the whole Exercise of [the Reformed] Religion, and severely persecute all that profess it’.⁴⁴ By late January 1688 it was being reported that the numerous copies of Fagel's Letter that had been ‘industriously spread abroad’ had already done the King's affairs ‘a great prejudice’, it weighing ‘much with people’. The Presbyterians immediately held a synod to discuss whether or not the penal laws should be removed, and were said to have had Fagel's Letter before them, although for the time being they failed to reach an agreement on the issue.⁴⁵

Such propaganda undoubtedly had some impact. The Spanish ambassador Don Pedro Ronquillo observed in March 1688 that the King himself was well aware that support for his tolerationist stance was eroding, reporting that some of those who had told James they would back his repeal of the Test had changed their minds and that the Presbyterians appeared now to ‘unite with the Anglicans'.⁴⁶ Yet what really altered the dynamic was the fact that the Catholic ‘miracle’, which Halifax thought could never happen, did indeed occur. In the autumn of 1687 the ‘long barren’ Queen became pregnant, and in June 1688 was ‘brought to bed’ of a son. Anticipating before the birth that the Queen would provide him with a male heir, James became even less conciliatory, and even more determined to take on the Church of England by reissuing his Indulgence and proceeding full pace with his plans to pack parliament. Anglicans now had to decide how to act; the wait-and-see strategy was no longer a viable option. Likewise, dissenters could no longer hedge their bets; they had to come down on one side or the other. And William of Orange had to make up his mind whether he could afford to allow England, Scotland and Ireland, which had hitherto been his wife's inheritance, to become subject to a potentially never-ending line of Catholic monarchs and perhaps, thereby, drawn into a firm alliance with the United Provinces' main enemy, France.

JAMES'S SECOND DECLARATION OF INDULGENCE AND THE TRIAL OF THE SEVEN BISHOPS

On 23 December 1687 James issued a proclamation announcing the Queen was ‘with issue’ and appointing 15 January (in London) and 29 January (elsewhere) as days of thanksgiving.⁴⁷ Local records confirm the days were appropriately commemorated with church services and peals of bells, but with how much enthusiasm remains open to question.⁴⁸ The Earl of Clarendon attended the service at St James's, Westminster, on the 15th, noting that ‘there were not above two or three in the church who brought the form of prayer with them’ and noting that ‘the Queen's belly’ was ‘every where ridiculed, as if scarce any body believed it to be true’.⁴⁹ Danby recalled with suspicion in March how ‘many of our ladies, say, that the Queen's great belly seems to grow faster than they have observed their own to do’.⁵⁰ In Oxford, a libel was soon circulating ‘containing an account of 3 women to be brought to bed’ and if any of them were to have a son ‘he must be nursed up and be king’; come the 29th, only Christ Church and Magdalen rang their bells during the day, although the University church did ring at night and a few colleges staged bonfires.⁵¹ Likewise a ‘notorious Libell… on her Majestie's being with child’ (possibly the same one) rapidly began to spread through the capital; the King himself found one copy behind the mirror in his bedchamber, at which he was said to be ‘Extreamely displeased’.⁵² There was the odd bonfire in the provinces on the 29th, and also on 6 February, for the anniversary of James's accession.⁵³ However, in the capital Clarendon noted that the church he attended on 6 February was ‘extremely empty: no more than ordinarily at prayers upon a week day’.⁵⁴

On 27 April James decided to reissue his Declaration of Indulgence, and backed it up with an order, on 4 May, requiring the bishops to instruct their clergy to read it in their churches on two sucessive Sundays (20 and 27 May for the London area, 3 and 10 June elsewhere).⁵⁵ His strategy was transparent. He had been disappointed with the Church's response to his Declaration of Indulgence of the previous year, and hoped that by now forcing the clergy to read the Indulgence, they could be made to seem to approve of the suspension of the penal laws and Tests. He expected the Church's teachings on non-resistance would mean that most would comply; if a few did refuse, they could be removed from office and their opposition thereby neutralized.

It proved a serious miscalculation. The clergy of London – among them Sherlock, Patrick, Stillingfleet, Fowler and Tillotson – held a series of meetings to discuss how they would respond and, after consulting with leading Anglican politicians (such as Danby, Halifax and Nottingham) and a number of bishops (including Sancroft of Canterbury), overwhelmingly decided not to read the Indulgence. As one of these clerics pointed out, if they did they would ‘be in the Scorn of the Papists, and Fanaticks’. ‘The designe’ was ‘too obvious to all’, namely ‘to ridicule us as unstable complying men… when our places are in danger’. Reading the Indulgence would imply an acceptance of its legality, or at least ‘an owning of a power to Command the publishing of things that are against Law’; it would make it hard for the clergy to defend their refusal to vote for MPs who would ‘pass this Declaration into a Law’; and the clergy might in future be asked to approve other things, which they would not be able to object to because they had supported this. Besides, most of the clergy thought that the Indulgence was illegal: ‘such a Declaration’ had ‘been solemnly declared in Parliament to be illegal’, and the clergy's compliance would in itself be ‘unlawful’, since they were ‘abundantly satisfied that an unlimited Tolleration’ was ‘pernicious to Religion and the Soules of men’.⁵⁶

As a result of these discussions, Archbishop Sancroft and six of his bishops – Francis Turner of Ely, Thomas Ken of Bath and Wells, John Lake of Chichester, Thomas White of Peterborough, Jonathan Trelawney of Bristol and William Lloyd of St Asaph – decided to petition the crown to ask not to be forced to require their clergy to read the Indulgence (it was said that the bishops of Gloucester, Norwich and Winchester were also privy to and agreed with the petition). The six bishops presented the petition to the King at Whitehall on Friday 18 May; ill-health prevented Sancroft himself from attending, although the petition was in his handwriting. The bishops insisted that their opposition proceeded neither from ‘any want to duty and obedience’ to the King, nor from ‘any want of due tendernesse to dissenters, in relation to whom’ they were ‘willing to come to such a temper as shall be thought fit, when that matter shall be considered in parliament and convocation’. However, given that the Declaration was ‘founded upon such a power as hath been often declared illegal in Parliament’, their petition maintained, they felt they could not ‘in prudence, honour, or conscience… make themselves parties to it’. (A similarly worded document circulated among the London clergy as a justification of why they themselves would refuse to read the Declaration.) ⁵⁷ James was outraged that the bishops should dare petition against ‘his Dispensing power, which Almighty God had placed in him’, and it was said ‘that his countenance sunke and he looked pale’. He certainly began to lose his cool, blurting out that ‘this was a Step towards a Rebellion’ and insisting that ‘he would be obeyed’. As the bishops moved out of earshot he apparently added that ‘they [the Bishops] neither loved him nor his father, but he [Charles I] dyed for them but they fought for themselves, and not for him’ a highly revealing remark which shows how the memory of the Civil War and the regicide still haunted James and coloured his attitude towards politics.⁵⁸ The Jesuit Father Petre was said to be delighted that James now seemed set to break with the Church of England, predicting they ‘should be made to eat their own dung’.⁵⁹

Very few of the clergy did obey the King. The Declaration was read in just seven churches in the whole of the metropolitan area, and in at least three of these (Westminster Abbey, St Gregory's by St Paul's, and St Matthew's, Friday Street) the congregation walked out in protest. Most of these churches subsequently declined to read it on the following Sunday. Across the country as a whole, no more than 200 churches (out of over 9,000) saw the Declaration read.⁶⁰ At Chislehurst in Kent, one of the ejected fellows of Magdalen College, instead of reading the Declaration, preached a sermon praying for deliverence ‘From the fury of the Papists, and the dread of the Fanaticks’.⁶¹ In the diocese of Oxford, without a bishop since the death of the ultra-loyal Samuel Parker in March, only six read it; in Oxford itself, not one did so.⁶² Only six of the bishops instructed their clergy to read the Declaration – Durham, Lincoln, Hereford, Rochester, Chester and St Davids – yet even then their diocesan clergy, for the most part, refused to comply.⁶³ The Bishop of Durham had to suspend thirty ministers for non-compliance, including his archdeacon. The diocese of Chester provides a rare example where ‘a great part of the Clergie’ complied with their bishop's order, but even they later addressed the King to explain that they had acted out of duty, not because they approved of ‘the Matter of the Declaration’.⁶⁴ Similarly, Bishop Croft of Hereford wrote a tract arguing that the reading of the Declaration did not imply consent to it, and that people had to ‘submit unto his Majesties Will and have patience’, even though if the King had asked for his opinion on this matter he would have beseeched him ‘not to use his Dispensing Power in that high manner’.⁶⁵

The loyalist press was quick to pour scorn on the bishops and clergy who refused to read the Indulgence. One author condemned the refusal as ‘an unquestionable Act of Disobedience to the command of the Soveraign Authority, than which there cannot be a greater mark of that Disloyalty which the Clergy of the Establish'd Religion so much disown’.⁶⁶ Another adduced various legal arguments for why the clergy had to obey the King, assuring them that if they obeyed unjust commands they were not at fault.⁶⁷ One poet asked, ‘if conscience be thought a sufficient pretense, / Why should it not salve the Dissenters' offense?’, and suggested that, despite the Anglican clergy's talk ‘of Passive Obedience’, they clearly thought it prudent, ‘when interest sways, to resist’.⁶⁸

Anglican apologists were quick to defend the non-compliance. One author stated that he was prepared to leave consideration of the dispensing power to others more expert, and also claimed that he did not begrudge the King the right to make use of his Catholic subjects. But he did wonder why, given that there were ‘no Penal Laws to which our Congregations are obnoxious’, the reading of the Indulgence should be imposed upon the Anglican clergy, since that could only be construed as ‘sollicitng and tempting our own people to forsake our Communion’. However the clergy could not in conscience, he continued, read a declaration which stated that the King wished all his subjects ‘were Members of the Catholick Church’ and which suspended ‘all manner of Penal Laws, in matters Ecclesiastical’, including, by implication, those against fornication, adultery, incest, blasphemy, prophaneness and ‘open derision of Christian religion’; this was ‘not out of any unreasonable opinion of our selves, nor disaffection to Protestant Dissenters’, but stemmed from ‘a tender care of the Souls committed to us, especially those of the weaker sort, to whom we dare not propose an Invitation to Popery, and much less any thing that may give countenance or encouragement to Irreligion’.⁶⁹

The strongest statement against reading the Indulgence came from William Sherlock, a prominent participant in the meetings the clergy held in London in May, in a pamphlet dated 22 May. ‘By our Law’, Sherlock wrote, ‘all Ministerial Officers are accountable for their Actions: The Authority of Superiours, though of the King himself, cannot justifie inferiour Officers, much less the Ministers of State, if they should execute any illegal Commands.’ It was a maxim of our law, he explained, that ‘the King can do no wrong; and therefore if any wrong be done, the Crime and Guilt is the Minister's who does it’. The laws were ‘the King's publick Will’ and the king could never be ‘supposed to command any thing contrary to law’; if any minister commits an illegal action, he is not ‘allowed to pretend the King's Command and Authority for it’. Ministers of religion had ‘a greater tye and Obligation than this’, Sherlock continued, being responsible for ‘the care and conduct of men's Souls’, and thus were obliged to ensure ‘what they publish in their Churches be neither contrary to the Laws of the Land, nor to the good of the Church’. Moreover, their reading the Declaration would undoubtedly imply their consent to it; the clergy were not ‘common Cryers’, but what they read they might be ‘supposed to recommend too’. The Indulgence, Sherlock further claimed, was ‘against the Constitution of the Church of England’, which was ‘established by Law’ and to which the clergy had subscribed, so they were ‘bound in Conscience to teach nothing contrary to it’. Yet to read the Indulgence was ‘to teach an unlimited and universal Toleration, which the Parliament in 72 [i.e., February 1672/3] declared illegal, and which has been condemned by the Christian Church in all Ages’. It was ‘to teach my People, that they need never come to Church more’; it was ‘to teach the dispensing Power, which alters, what has been formerly thought, the whole Constitution of this Church and Kingdom: which we dare not do, till we have the Authority of Parliament for it’; it was ‘to recommend to our People, the choice of such persons to sit in Parliament, as shall take away the Test and Penal Laws, which most of the Nobility and Gentry of the Nation have declared their judgment against’; and it was to condemn those patriots who had forfeited their favour with their prince because they would not consent to taking away the Tests and the penal laws.⁷⁰

The moderate dissenters (especially the Presbyterians), after a series of meetings with some of the Church's representatives, decided to support the stance taken by the seven bishops, preferring to ‘remain under the persecution of the penal Laws, in the hopes and expectation of receiving at the proper period some alleviation, than by separating from the English church, to go surely the one after the other to the ground’.⁷¹ The King and his advisers thought of ordering dissenting ministers to read the Indulgence in their meetings, but backed down when informed there would be considerable opposition. Instead, working through Penn and Stephen Lobb, they tried to bring pressure on the nonconformist leaders to present an address, but found no dissenters ‘of Condition or quality’ would support it, since they wanted ‘Liberty by a Law’ and were ‘utterly against letting Papists into the Government’.⁷² A mere twenty-one addresses of thanks came in for the Indulgence of 1688, mostly from purged corporations and magisterial benches – although most corporations and benches that had been purged declined to address. Even the members of the recently purged Chichester town assembly, who had voted unanimously the previous February to allow themselves to hold meetings with their hats on (a concession to Quaker scruples), voted down a proposal to address the King ‘for this declaration for toleration’. (A further purge of the corporation predictably followed a couple of weeks later.) ⁷³ The Quakers, at their yearly meeting in London, were the only group of dissenters to draw up an address.⁷⁴

James summoned the seven bishops to Whitehall on 8 June to explain their actions, but they refused to answer the King's questions, protesting that by the laws of the land ‘no Subject was bound to accuse himselfe’, as the Bishop of St Asaph put it. Furious, James demanded they give bail to appear at King's Bench; they again refused, claiming that as peers of the realm they could not be required to post bail, but offered to give their personal promise, as clergymen, to appear. James, his patience exhausted, ordered them to the Tower. Crowds of people gathered to pay their respects as the seven were escorted out of Whitehall and taken by river to their imprisonment, falling to their knees and shouting ‘God bless the Bishops’; even the soldiers at the Tower did the same.⁷⁵ The bishops appeared at Westminster Hall on 15 June, accompanied by twenty-one noblemen who came to put up bail, if needed (among them Halifax, Danby and Clarendon). The bishops were charged with publishing a seditious libel against the King and government. They pleaded not guilty and were released on their own recognizance (£200 for the archbishop, £100 each for the others) to await trial on the 29th; the reason why they were now prepared to give bail when they had not before, they said, was that having tried to assert the privilege of peerage but having been overruled by a court of justice, they deemed it appropriate to submit. A rich Quaker from Wells also appeared, offering to be bail for the Bishop of Bath and Wells, and stating that ‘tho he could not Swear, he was worth 10,000 li. [and] he would substantially prove it’.⁷⁶ Again, crowds of people cheered the bishops as they left Westminster Hall, falling to their knees to beg their blessing, while that evening there were numerous bonfires throughout the capital to celebrate the bishops' release.⁷⁷ Indeed, ‘the generality of people’ were in such ‘a humour… about the Bishops’ that the bishops dared not even ‘stir abroad’ during the two weeks leading up to the trial, for wherever they went ‘crowds of people flocke[d] about them to aske them blessing’.⁷⁸

On the day of the trial, throngs of people gathered in Westminster Hall and in the streets outside the courtroom, providing an intimidating environment for those who came to make the case for the prosecution. The Solicitor-General, Sir William Williams (a Whig turncoat) and others associated with the government were treated with ‘the utmost disrespect’. Sunderland, who had announced his conversion to Catholicism only the day before, was kicked ‘on the breach so severely’ as he came through the hall to give his evidence ‘that he cryed out “Oh”’; someone even held ‘his fist up’ to the Secretary of State as if ‘to strike him over the face’. When Sunderland left the courtroom he was greeted with cries of ‘Kill the new Popish Dog’. The Bishop of Chester, who turned up at the trial ‘to satisfy his curiosity’, was not only saluted with chants of ‘Grasping Woulf in sheep's attire’, but – being ‘a tall and Corpulent Gentleman’ – was also jeered from all directions with shouts of ‘make room’, since ‘he had the Pope in his belly’.⁷⁹

The indictment accused the bishops of conspiring ‘to diminish the regal authority, and royal prerogative, power and government’ by framing and writing a ‘pernicious and seditious Libel’ concerning the King's Declaration of Indulgence ‘under pretence of a Petition’, which they ‘published’ in the presence of the King. Although the bishops had not printed their petition, the presiding judge, Lord Chief Justice Wright, ruled that merely bringing the petition to the King constituted publication. The main thrust of the defence's case was that the bishops’ petition could not have been an affront to the royal prerogative because the King did not possess the suspending power: parliament had in the past condemned the suspending power, and Charles II, on withdrawing his Indulgences of 1662 and 1672 had acknowledged that he possessed no such power. Sir Robert Sawyer insisted that the bishops had simply told the King what parliament had declared (they did not offer this as their own judgment), so how could this be construed as an attempt ‘to diminish the king's prerogative and regal power’? Sawyer further maintained that the bishops had ‘done their duty’ in this matter, since the Elizabethan Act of Uniformity had made bishops ‘special guardians of the law of uniformity’, so that they were ‘obliged to see it executed’. Heneage Finch argued that only the legislature – the king, Lords and Commons – had the ‘power to abrogate the laws’ and that Charles II had accepted, when he withdrew his Indulgences, parliament's reasoning that he could not suspend the penal laws in matters ecclesiastic without an act of parliament. When the king is ‘misinformed, or under a misapprehension of the law’, Finch went on, the bishops, as peers of the realm, had the right ‘humbly to advise the king’ and a ‘duty… to make known their reason why they could not obey that command’. Sir Henry Pollexfen insisted that the royal dispensing power, as vindicated by Godden v. Hales, could not sanction the suspending power, but proved ‘quite the contrary’. ‘For why should any man go about to argue, that the king may dispense with this or that particular law’, Pollexfen asked, ‘if at once he can dispense with all the law, by an undoubted prerogative?’ Sir John Somers concluded that the bishops, in petitioning against the suspending power, thus had ‘no design to diminish the prerogative, because the king hath no such prerogative’.⁸⁰

The prosecution refuted such claims, arguing that in withdrawing his Indulgences Charles had never made a formal disclaimer of his right, and pointing out that what the defence alleged had been declarations in parliament (concerning the suspending power) had, in fact, been no more than the declarations of one part of parliament (either the Commons or the Lords), which had never received the concurrence of the principal part, the king. Furthermore, it was irrelevant whether what the bishops had said in their petition was true or not; the only thing to consider, they maintained, was whether the petition was ‘reflecting and scandalous’.⁸¹ In his summing up, Wright insisted that the suspending power was irrelevant to the case, and refused to give his opinion as to whether it was legal or not. For Wright, the key issues were whether a publication had taken place and, if so, whether there had been a libel. Since ‘any thing that shall disturb the government, or make mischief and a stir among the people’ could be construed as libellous, then the bishops' petition did, in his determination, constitute a libel. Because this involved a question of law, however, the other three judges of King's Bench were allowed their say. Justice Holloway concluded that he did not think the bishops' petition was a libel, Justice Allibone that it was; both remained silent on the issue of the suspending power. Justice Powell, however, argued that ‘if there be no such dispensing power in the king’, then the petition was ‘no libel’, and invited the jury to base their decision on whether they thought the power the King claimed in his Declaration of Indulgence was legal. At ten o'clock the next morning – 30 June – the jury returned a verdict of ‘not guilty’. They would have brought in their verdict the previous day, within half an hour of the trial concluding, were it not for the obstructionist tactics of one Mr Arnold, the King's brewer, and a Mr Done, a macebearer, who refused to concur with the majority.⁸²

Large cheers resounded both inside the courtroom and on the streets outside as soon as the verdict was announced. As the nobility who had attended the trial made their way home, they threw money out of their coaches, urging ‘the poor people… to drink the Health of the King, the Prelates, and the Jury’. That night there were bonfire and firework celebrations throughout the metropolitan area, and even a number of pope-burnings. Crowds stopped passers-by to demand contributions towards their festivities; those who refused stood the risk of being robbed or beaten up. ‘Almost all the Papists in London’, one correspondent reported, ‘had bonfires made at their doors’, and were made to pay for them; there was at least one fatality, when Lord Salisbury's servants fired at the crowd that constructed a bonfire outside his residence.⁸³ Contemporaries reported similar displays throughout the country as news of the bishops' acquittal spread: in Bedford, Bristol, Cambridge, Gloucester, Lichfield, Norwich, Oxford, Tamworth, and in many towns and villages in Buckinghamshire and Leicestershire.⁸⁴ When news reached the army camp at Hounslow Heath, there were loud huzzas, and the soldiers rejoiced by drinking the health of the bishops. It was an ominous portent.⁸⁵

The dissenters also, by and large, rallied behind the bishops. Ten nonconformist ministers visited the bishops during their initial detention in the Tower, proclaiming that ‘they could not but adhear to them as men constant to the Protestant faith’.⁸⁶ Halifax told William of Orange that the business of the bishops had ‘brought all the Protestants together, and bound them up into a knot, that cannot easily be untied’.⁸⁷ When the bishops were acquitted, the dissenters were observed to be not ‘backward in showing themselves well pleased with the verdict’.⁸⁸ The bishops even received letters from the Presbyterians in Scotland, for so long bitterly hostile to prelacy, assuring them of their sympathy.⁸⁹ Indeed, the seven bishops became the iconic figures of successful resistance to James's innovations. A medal was coined with the seven bishops on one side, and a Jesuit and a monk on the other, digging away at the foundations of the Church of England, with the words ‘The gates of Hell shall not prevail against her’.⁹⁰

The trial of the seven bishops had been a disaster from the crown's point of view. James had not only failed to bring the bishops into line, but, by forcing the issue, he had made it apparent that public opinion was overwhelmingly against his attempts to establish a general toleration through the use of the suspending power. Moreover, the verdict itself seemed to affirm that the suspending power was indeed illegal. As a result, judges at the assizes resumed prosecutions against Catholics for being in violation of the penal laws.⁹¹ James made desperate efforts to salvage some credibility, but to little avail. Some of those arrested for making disturbances on the night of the bishops' release were convicted at the City of London's sessions, being either fined or sent to the house of correction. Those brought before the Middlesex sessions at Hickes Hall, however, had their bills of indictment thrown out by the grand jury (in a way reminiscent of the infamous Whig ‘ignoramus’ juries of the Exclusion Crisis). Moreover, the Hickes Hall grand jury comprised precisely those types whom James had brought into positions of authority in order to win support for his policy of religious toleration: the foreman was a Baptist and the rest said to be ‘of the same stamp’.⁹² The King tried to encourage addresses in abhorrence of the bishops' petition, but these had difficulty getting off the ground, despite the purges of recent months. Although eight members of the Middlesex grand jury subscribed an abhorrence in July, for example, the other thirteen refused.⁹³ James sacked the two judges (Holloway and Powell) who had argued that the bishops' petition did not constitute a libel and toyed with the idea of bringing the seven bishops before the Ecclesiastical Commission for refusing to read his Declaration, although no such proceedings were ever instituted. The commissioners did instruct chancellors, archdeacons and commissaries to launch inquiries into which clergy had read the Indulgence and to report those who had refused, but on the whole they refused to cooperate.⁹⁴ Bishop Sprat of Rochester resigned from the Ecclesiastical Commission in mid-August, because he thought it was wrong to proceed against those clergy who, out of conscience, had refused to read the Indulgence, even though Sprat himself had backed the King's order to that effect.⁹⁵

THE BIRTH OF THE PRINCE OF WALES AND THE INVITATION TO WILLIAM OF ORANGE

The drama of the trial of the seven bishops upstaged what for James was the most momentous event of that summer, the birth of the Prince of Wales on 10 June. The King immediately issued a proclamation announcing the news, ordering the Lord Mayor of London to promote bonfires and setting aside two days of public thanksgiving (17 June in London, 1 July elsewhere).⁹⁶ The court and its agents in the localities did their best to encourage suitable public displays, while the London Gazette published accounts of celebrations brought to its attention in an effort to convey the impression that the nation was rejoicing with the King.⁹⁷ The evidence in fact suggests that the nation at large hardly found this a time for rejoicing, and those celebrations that did take place looked to all the world to be staged events. One loyalist newswriter wrote of the inexpressible ‘joy for this happinesse’ shown in London on 10 June, and reported how people feared they ‘should have been burnt… with bonfires and drowned with wine’ – his account making it clear not only that there was an abundance of alcohol to encourage the crowds to come out but also that he was one of the participants and scarcely an unbiased observer of the events he was purporting to describe.⁹⁸ At Oxford that same day there was one bonfire at Carfax, while the officers of the regiment stationed in town made another at the Cross Inn and provided a barrel or two of beer for the locals to try to put them in a celebratory mood. Magdalen College and Christ Church also lit bonfires, but no other colleges commemorated the event, ‘knowing full well’, the Oxford antiquary Anthony Wood tells us, that if the Prince lived ‘the crowne of England and popish religion’ would ‘never part’. The initiation of quo warranto proceedings against the city of Oxford a few days later enabled the government to bring pressure to bear to ensure that the official day of thanksgiving on 1 July was better observed: the commissioners responsible for regulating the corporation ordered all the church-wardens to ring their bells, and the commissioners themselves and every army officer in town sponsored their own bonfires, as did many of the troopers. The colleges also seemed to join in the general celebrations, with all except Merton staging bonfires. But, according to Wood, it was a subterfuge: the joy that ‘many protestants thus shew'd… under pretence of thanksgiving for the prince his birth’ was really for ‘the deliverance and quitting’ of the seven bishops.⁹⁹ Indeed, a number of contemporaries, including those sympathetic to the court, observed that there were more bonfires in support of the bishops than for the birth of the male heir. Some communities were prepared to draw up congratulatory addresses, out of a sense of duty and good manners, but invariably in the face of considerable local opposition.¹⁰⁰ James staged an elaborate firework display on the River Thames on the night of 17 July to celebrate the birth and the Queen's safe delivery and return to health, which attracted some 100,000 spectators from the London area and surrounding countryside, but this also appears to have backfired. There were three mechanical figures in the display – two females representing fecundity and loyalty, and Bacchus – but according to the government newspaper, the Publick Occurrences, some local wits remodelled the effigies in advance to make them look like Queen Elizabeth, Anne Boleyn and Henry VIII, and then started spreading the rumour that these were ‘to be publickly blown up, as an Emblem that all that they did, shall now be Revers'd’.¹⁰¹

The birth of the Prince of Wales put an end to the ‘wait-for-better-times’ strategy advocated by the likes of Halifax, since there was now little likelihood that James's policies would be reversed by his successor. As we have seen, doubts had been raised from almost as soon as the pregnancy had been announced as to whether the Queen were genuinely pregnant; now rumours began to spread that the Queen had not in truth been brought to bed of a son but that the infant had been smuggled into the delivery room in a warming pan. Shortly after the Prince's birth, James's own daughter, Anne, wrote to her sister Mary stating that she did not believe the Queen had been with child and ‘where one believes it, a thousand do not’.¹⁰² According to one anti-Catholic satire, soon ‘the whole Kingdom' was laughing ‘at the Sham’, and ‘the People’ were saying that ‘the Queen lay under such Circumstances at the time of the report of her Conception, that not all the Stallions in Europe could have got her with Child’.¹⁰³ If the warming-pan story were true – there is no way to know for sure, but the balance of evidence suggests that it almost certainly was not – then James was not only seeking to foist a Catholic successor on the nation by underhand means, but he was also defrauding his Protestant daughter, Mary, and her husband, William of Orange, of their rightful inheritance.¹⁰⁴

On the day that the seven bishops were acquitted the earls of Devonshire and of Danby, Bishop Compton, the Earl of Shrewsbury, Lord Lumley, Edward Russell and Henry Sidney sent a letter to William of Orange inviting him to intervene in English affairs. The seven represented specific constituencies that William would need to be convinced would be on his side before he could engage in such a risky venture: Devonshire and Danby both were landed magnates who might expect to command substantial followings in their respective territorial spheres of influence, one a Whig, the other a Tory; Compton, the suspended Bishop of London, represented the Church; Shrewsbury and Lumley (both of whom, like Danby, had stood bail for the seven bishops) had been removed from the army for their opposition to James's intrusion of Catholic officers, and might be expected to represent disaffected opinion within the armed forces; Russell and Sidney represented the navy. Their letter assured William that ‘the people’ were ‘so generally dissatisfied with the present conduct of the government’ that ‘nineteen parts of twenty… throughout the kingdom’ desired a change, and ‘would willingly contribute to it, if they had such a protection to countenance their rising, as would secure them from being destroyed’. It was ‘no less certain’, the letter continued, ‘that much the greatest part of the nobility and gentry’ were ‘as much dissatisfied’, and ‘that some of the most considerable of them’ would join William at his landing and use their interest ‘to draw great numbers to them’. If William landed with a force sufficient ‘to defend itself and them, till they could be got together into some order’, they would soon have double the number of James's army, which they predicted would not remain loyal to the King in any case, since the officers and the common soldiers were ‘so discontented’. It was important, however, for William to act now, before the court changed the officers and soldiers of the army, procured the meeting of a packed parliament, or began to proceed by more violent means.¹⁰⁵

William was indeed to act quickly. The question was, would ‘the people’ prove to be ‘so generally dissatisfied’ as the Immortal Seven predicted?

Revolutions in Three Kingdoms, 1688–91

6

Yielding an Active Obedience Only According to Law