division as Holland; sumption in tion; In inalienable into confusion by attempting to swallow up policy, and to a great extent even morality, in positive law, an error that made process of it necessary for Austin and Holland to carry the process of extended by division further by a fresh analysis, which rigidly separates the Austin and general science of law from the ethical part of politics.1 When after the Revolution of 1688 it became necessary for Locke to Locke's asjustify what had been done, he, adopting with many reserva- defence of tions Hobbes' social contract theory as a starting-point, rested the Revoluhis defence of the proceedings of the convention upon the assumption that the people, even after the delegation of the supreme power to the state, always reserve to themselves the right to withdraw it whenever it has been used for purposes inconsistent with the end for which society was formed. that event he claimed that the people had a right to resist the right of the people; prince, and, acting through their supreme legislative assembly,3 to visit upon him the consequences of an abuse of their trust. In order to counteract the effect of such doctrines so danger- counter ous to monarchy, it became necessary after the Restoration to indefeasible revive and intensify the political theory of the indefeasible hereditary hereditary right of kings, which was supposed to flow from the divine institution of the royal office, an assumption that lifted the succession to the crown above the supremacy of the legislature. And in order to give still greater security to kingship, that doctrine was supplemented by the obligation of supple passive obedience even to the worst of sovereigns, which, first after the taught as a religious duty, finally passed from the homilies Restorato the statute-book. When the University of Oxford, on the of passive day of Russell's execution, published its famous decree in support of passive obedience, it was at the same time careful to consign to everlasting reprobation the doctrine that all civil social authority was originally derived from the people through a theory compact, express or implied, between the prince and his sub- condemned jects, whereby the former might forfeit his right to govern by 1 "It would not be too much to say that Professor Holland's Elements of Jurisprudence is the first work of pure scientific jurisprudence which has appeared in England.” — Pollock, p. 63. 2 That defence or apology is embodied in his Essay on Civil Government, published in 1689. 8 Locke's fundamental principle is that the real sovereignty resides in the 4 See above, p. 383. theory of right mented, tion, by that obedience; contract at Oxford; involved in the Revo antagonistic virtue of misconduct.1 Without a clear comprehension of political theories these two opposing theories, the one claiming the supreme political authority for the crown, the other for the legislature, it is impossible to perfectly understand the full significance of the acts which culminated in the fall of the house of Stuart through what is generally known as the glorious Revolution. lution. James concealed his real designs at the outset ; tion to the council; 2. The fact that James, an avowed catholic, held higher notions of the prerogative perhaps than any of his predecessors, coupled with events which transpired when his reign was well advanced, has given rise to the not improbable assumption that he ascended the throne with the fixed purpose of making himself absolute, and of overthrowing the established church in favor of that of Rome. If such was his design at the outset, his first declaration was artfully devised to conceal his real intentions. Passing from the death-chamber of his brother to the room in which the council was assembled, after expressing his declara- the wish to follow in Charles' footsteps he said, "I shall make it my endeavor to preserve this government, both in church and state, as it is now by law established. I know the principles of the Church of England are for monarchy, and the members of it have shown themselves good and lawful subjects, therefore I shall always take care to defend and support it. I know, too, that the laws of England are sufficient to make the king as great a monarch as I can wish; and, as I shall never depart from the just rights and prerogatives of the crown, so I shall never invade any man's property." 2 The new king then requested the ministers who were in office to retain their places, and the direction of affairs thus continued in the hands of Hyde, now earl of Rochester, Sunderland, Rochester; Halifax, and Godolphin, with the first named at the head of parliament the board as lord high treasurer. A parliament was immedi Charles' ministers continued in office under leadership of met May 19, 1685; James renewed his brother's secret treaty with France. ately called to meet on the 19th of May, 1685, after an interval of five years; and we have the authority of Barillon for the statement that James at once revived the humiliating relations with Louis which the dead king had so long maintained, by apologizing for the calling of the houses without the French 1 Twenty-four propositions, including the social contract theory, taken from the works of Hobbes, Milton, Buchanan, Baxter, Cartwright, Knox, and others, were denounced by the decree as "false, seditious, and impious, ... and destructive of all government in church and state." 2 James II., 3; Fox, App., 16. king's consent, an explanation at once followed by a request for a fresh pension from that source.1 But as Barillon persisted in withholding the money, although actually in his possession, until the happening of future events, it became necessary to provide present means for pressing necessities. of the system as As the legal grant of the whole of the port duties and one Settlement half of the excise had expired with the life of Charles, James revenue; undertook, by a proclamation alleging state necessity as the cause, to continue such duties until they could be regularly settled upon him by parliament, which, in view of the fact that the king had not claimed it by virtue of the prerogative, promptly granted him for life the revenue enjoyed by his predecessor.3 And as that was insufficient as a whole to meet the expenses of the crown, certain selected articles of commerce were subjected to additional burdens. No change was made, however, summary of during the reign in the system of direct taxation, "and, as the the fiscal general result of the arrangements connected with the revenue it existed made under the later Stuarts, we have (1) the continuation of later the old system of port duties on merchandise imported and exported, with additional taxes on wine, sugar, tobacco, and French and India linens and silk, and brandy; (2) the substitution, in lieu of the revenue from the feudal tenures and in supplement to the revenue from demesne, of certain items of the commonwealth excise; (3) the imposition of hearth-money; and (4) the suppression of the old subsidy in favor of the commonwealth rate or assessment, as a tax for extraordinary purposes." 5 under the Stuarts. renewed his his first standard To his first parliament, which met on the day appointed, James James renewed the vows he had made at his accession to the vows to council; and then, in order to hasten the grants already de- parliament; scribed, he announced the fact that the protestant earl of of rebellion Argyle had raised the standard of rebellion in Scotland in the raised by hope of ending his rule in that kingdom. Upon the heels of Monmouth; 1 As to the value of Barillon's state- king for his action. Burnet, vol. iii. p. ments, see Lingard, vol. x. pp. 128- 9; Lord Lonsdale, Memoirs, p. 4; Fox, 131. App., pp. 18, 39; Kennet, vol. iii. p. 427. 2 As the language of the proclamation admitted by implication that the duties could not be legally levied without authority of parliament, addresses were presented from the barristers of the Middle Temple and from many companies of merchants, thanking the 8 I Jac. II. c. I. 5 Dowell, Hist. of Taxation, vol. ii. p. 33. 6 Lords' Journals, vol. xiv. p. 9; Evelyn, vol. iii. p. 159. Argyle and both leaders sent to Colonel martial law, that attempt in the north soon followed the invasion of the duke of Monmouth, who on the 11th of June landed in the west at the head of an armed force, whose purpose was declared to be "the defence and vindication of the protestant religion, and the laws, rights, and privileges of England." But the two expeditions thus organized in concert by the Scotch and English exiles who in the later years of Charles had found a refuge in Holland soon collapsed, and their unfortunate leaders were sent to the block after proceedings at once prompt the block; and summary. Argyle was beheaded on the 30th of June; and Monmouth, after a crushing defeat at Sedgemoor on the 6th of July, shared the same fate on the 15th of that month. While the royal bastard thus suffered at London, his followers in the west were given the first instalment of James' vengeance through the execution of martial law at the hands of Colonel Kirk, whose brutal proceedings were suspended only in order to make place for the "bloody circuit" of Chief Justice Jeffreys, who, with a strong military escort which he conducted with the temporary rank of lieutenant-general,2 set out at the head of a judicial commission, opened with the trial of Lady Lisle at Winchester on the 27th of August. She was sentenced to be burned alive for harboring two rebels for a night; over three and before the terrible inquisition ended, about three hundred and thirty persons were executed as traitors and felons; many were whipped and imprisoned, while more than eight hundred were sold into slavery to persons who were authorized to transport them for ten years to the West Indies. Then taking advantage of the opportunity furnished by the revolt, which had found the crown unprepared to repel invasion, James ventured to make a great increase in the standing army, and thus a way was opened for the commissioning of many catholic officers, in defiance of the terms of the Test Act expressly forbidding it. The king therefore resolved to bring about the the repeal repeal of that act, as well as a modification of the Habeas Corpus Act, whose provisions had greatly hampered the crown "bloody circuit;" hundred executed as traitors and felons, and eight hundred sold into slavery; James resolved to secure of the Test Act; 1 In this declaration the whole career of James is bitterly denounced and the purposes of Monmouth fully set forth. Somers' Tracts, vol. iv.; Collect., tom. iii. p. 190; State Trials, vol. xi. pp. 1032. 2 Not only the writs but James him self spoke of "Jeffrey's campaign.” – Dalrymple, p. 165. 8 See comments of Sir J. F. Stephen on this case, Hist. of the Crim. Law, vol. i. p. 413; vol. ii. p. 234. 4 Lingard, vol. x. p. 181. in commitments made in connection with the recent rebellion. When Halifax ventured to oppose his plans, James dismissed him from the council; and when the parliament, which had made prompt and generous grants as well as dangerous innovations in the law of treason for the protection of the king's person and succession, manifested the same spirit of resistance, it was rebuked by a prorogation from the 2d of July to the 9th of November. Upon the opening of the second session, which began at the time appointed, the contest was renewed by a demand from the king that a grant should be made for the support of the new troops which he had raised, and by an assurance that he would neither disgrace nor dismiss the officers of his own faith who had stood by him in the hour of danger.1 The commons responded with a grant of £700,000, commons but they coupled with it the condition that the king should demanded recall the illegal commissions issued in defiance of the Test commisAct, lest the continuance of the catholic officers in the army should be taken to be a dispensing with that law without act of parliament." As a counterblast to the resolute opposition of the lower house, earnestly seconded and accentuated by the lords, to any modification of a statute which both regarded as the bulwark of the protestant cause, James suddenly prorogued parliament parliament to the 10th of February, 1686; and although it was mitted to continued in existence by further prorogations for about eigh- meet after teen months, it was never again permitted to meet during the in Novemremainder of his reign.2 recall of sions issued in defiance of the act; never per prorogation ber, 1685. James' use of the dispensing and 3. Thus baffled in his attempt to induce the houses to repeal a fundamental law fatal to his designs, the king resolved to accomplish the same end through the exercise of an ancient power; prerogative of the crown generally known as the dispensing its origin power, which had been immemorially employed either for the character; exemption of particular persons for special reasons from the operation of penal laws, or for the suspension of an entire statute or set of statutes in conflict with the royal will. This said to exempting and suspending power, which is said to have been borrowed borrowed from the papal practice of issuing bulls "non obstante from papal any law to the contrary," seems to have had its beginning in issuing England in the reign of Henry III., who, when he attempted obstante; 1 Commons' Journals, November 9. 2 It was finally dissolved in July, 1687. have been practice of bulls non |