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1679.]

THE HABEAS CORPUS ACT.

411

of the commous to have free election of their Speaker. The king immediately gave this short answer:-" "All this is but loss of time; and therefore I command you to go back to your house, and do as I have directed you." The common's voted a further representation to the king, in which they complained that he had given an answer without having taken time for consideration, or that he would have formed a more favourable opinion of their proceedings. To this the king gave a quick reply, "I will return you an answer toThe commons assembled to hear the answer, and the lord-chancellor, by the king's order, prorogued the parliament. The prorogation was considered on both sides to have removed a great difficulty, and the commons in the next session chose Serjeant Gregory their Speaker.1

morrow."

The first act of the new parliament was a supply; it is only now important, as it declared the law with regard to billeting of soldiers, before so oppressive.2 After declaring that by the laws and customs of the realm, its inhabitants cannot be compelled against their wills to receive soldiers into their houses, and to sojourn them there,-it enacted that no officer, military or civil, or other person whatever, should thenceforth presume to place, quarter, or billet soldiers upon a subject or inhabitant of the realm, of any degree, quality, or profession whatever, without his consent; and that it should be lawful to refuse to sojourn or quarter soldiers, notwithstanding any command, order, warrant, or billeting whatever.3

The Habeas Corpus Act (passed in the same parliament) is supposed to shed a peculiar lustre on the reign of Charles II. But we have seen that as arbitrary imprisonment was from the time of Magna Charta directly contrary to the statute law of the realm, so the remedy by writ of habeas corpus. was not much less ancient, and was applied as the ordinary course of proceeding in several distinguished cases of impri1 Cobbett's Parliamentary History, vol. iv. pp. 1091-1112.

2 See ante, p. 279.

3 31 Car. II., cap. 1, ▲.D. 1€79.

sonment by the crown. The act of Charles II. is therefore not an original but a remedial law: it extended the remedy, but did not originate the right of the subject, nor did it enlarge the inherent principle of personal liberty which Magna Charta declared. Its title is, "An Act for the better securing the liberty of the subject, and for prevention of imprisonments beyond the seas." It extended the power of granting the writ to the lord-chancellor and to all the judges of the superior courts of common law, as well in vacation as in term time; and it declared two principles of great importance, as protecting the subject from prolonged imprisonment:-first, that persons committed for treason or felony, and applying to the court to be brought to trial, must be tried in the following term or sessions after their application,-unless it appear that the king's witnesses could not be produced—or they must be discharged on bail, and if not tried in the next succeeding term or sessions, they must be discharged from imprisonment;-secondly, that no inhabitant of England or Wales shall be sent a prisoner out of England, to any place within or without the king's dominions.

1 See ante, pp. 59 n., 277, 306.

2 31 Car. II., cap. 2, A.D. 1679. Its provisions will be detailed in the Second Part of this work.

CHAPTER XVIII.

JAMES II.

1685-1688. Reigned 3 years.

Exclusion Bill.-Whigs and Tories.-James's Speech to his Council.— Parliament.-Revenue settled on him for life.-His Designs to restore Popery and Arbitrary Government.-Standing Army.-Popish Officers.-Court of High Commission.-Declaration of Indulgence.— James appoints Papists to Offices in Church and State.-Requires the Bishops to obey his Order in Council.-Seven Bishops tried and acquitted.—Invitation to William and Mary.—William's Declaration.— A Convention called.—William and Mary accepted the Throne.-Resolution of the Nature of the Government passed.-Declaration of Rights.-William and Mary proclaimed.-Coronation Act.-Act of Settlement.

THE contest between prerogative and freedom was brought to a conclusion in the reign of James II., who ascended the throne on the 6th of February, 1685, on the death of his brother Charles. His brief reign, if we estimate it by the events which resulted from it, is perhaps the most important in the history of the constitution. He was a papist of the sternest bigotry. He was so confident in his divine right, as king, that he seemed blinded to any danger from the open profession of the proscribed religion; and in reliance on that right, and on the passive obedience of the people, he violated almost every fundamental law. The simple narrative of his illegal acts furnished an ample justification of his removal from the throne; and the re-affirmation and parliamentary declaration of the violated laws formed the chief part of the code of rights and liberties deemed necessary for a permanent con

stitutional government. The Declaration of Rights which followed his abdication was founded, not upon abstract or theoretical principles of government, but upon what, in legal phrase, may be called James's overt acts of treason to the nation.

There had been in the reign of Charles II. so much dislike and even dread of James's succession to the throne,- -a dread increased by the panic spread by the popish plot,-that a large party in the nation endeavoured to exclude him from the succession, on the ground of his being a papist. The house of commons passed a bill for that purpose, and for banishing him from the kingdom;-a fate from which he was only saved by a majority in the house of lords. The Exclusion Bill long and deeply agitated the nation and the government; and when James ascended the throne the people had become divided into two parties, under the then new but now familiar names of Whigs and Tories. These had their origin in nicknames fastened on the respective supporters and opponents of the Exclusion Bill. Those who were inimical to popery,-as well on religious grounds as from the encouragement it gave to the doctrines of divine right and passive obedience, but who were at the same time favourable to religious toleration amongst protestant sects, -were called Whigs; whilst those who, holding those doctrines as of irremovable obligation, although they supported the exclusive authority of the Protestant Established Church, would not concur in depriving even a professed papist of his right of succession to the throne,-were called Tories.

The laws for the exclusive establishment of the Church of England were clear and defined. Papists and protestant dissenters were disabled from holding any office, civil or military, and were liable to severe penalties for absenting themselves from their parish church; whilst any one becoming reconciled to the Church of Rome, was guilty of high treason. Charles II. had on several occasions endeavoured to produce some alleviation of these penal laws; but he was told by parliament that he had no power of inter

1685.]

MADE INDEPENDENT OF PARLIAMENT.

415

ference, and that no alteration could be made but by an act of parliament. Those laws, therefore, the king of England was bound to conform to, both in his own person and in his government.

James felt the force of these obligations on his accession. In his first address to his privy council he said he had been reported to be a man for arbitrary power; but that was not the only story that had been made of him, and he should make it his endeavour to preserve the government in church and state, as it was then established. "I know too," he said, "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 right and prerogative of the crown, so I shall never invade any man's property. I have often heretofore ventured my life in defence of the nation, and I shall still go as far as any man in preserving it, in all its just rights and privileges." But he made it known, after his brother's funeral, that he had died a Roman Catholic; and James soon afterwards appeared publicly at mass.

Parliament assembled on the 19th of May, 1685, by virtue of proclamations issued, as well for the meeting of parlia ment, as for levying, on James's sole authority, the customs and duties which constituted the revenue of the late king, but which expired at his decease.2 The house of commons contained a large majority of adherents of James,-the effect of changes made in the last reign in the charters of the corporations of the parliamentary boroughs, for the purpose of bringing them under the influence of the crown. The king opened the session on the 22nd of May, and renewed the declaration he had made to the privy council. The house of commons without delay unanimously voted to him for his life the whole revenue settled on the late king. Edward Seymour, although of the tory party, and a strenuous opposer of the Exclusion Bill, endeavoured to induce the commons to delay the vote; for the elections 1 Cobbett's Parliamentary History, vol. iv. p. 1342. 2 Fox's Reign of James II., p. 89.

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