compliance with the pleasure of the court. An appeal against a decree of his had been brought before the lords in the former session; and it was not only reversed with many severe reflections on him that made it, but the earl of Nottingham, who hated him, because he had endeavoured to detract from his father's memory, had got together so many instances of his ill administration of justice, that he exposed him severely for it. And, it was believed, that gave the crisis to the uneasiness and distraction of mind he was labouring under. He languished for some time; and died despised, and ill thought of by the whole nation *.

Nothing but his successor made him be remembered with regret: for Jeffreys had the seals. He had been made a peer while he was chief justice, which had not been done for some ages; but he affected to be an original in every thing. A day or two after the session was opened, the lords went upon the consideration of the king's speech; and, when some began to make remarks upon it, they were told, that by giving thanks for the speech, they had precluded themselves from finding fault with any part of it. This was rejected with indignation, and put an end to that compliment of giving thanks for a speech, when there was no special reason for it. The lords Halifax, Nottingham, and Mordaunt, were the chief arguers among the temporal lords. The bishop of London (Compton) spoke often likewise : and twice or thrice he said, he spoke not only his own sense, but the sense of that whole bench. They said, the Test was now the best fence they had for their religion: if they gave up so great a point, all the rest would soon follow; and if the king might by his authority supersede such a law, fortified with so many clauses, and above all with that of an incapacity, it was in vain to think of law any more: the government would become arbitrary and absolute. Jeffreys began to argue in his rough manner; but he was soon taken down; it appearing, that how furiously soever he raved on the bench, where he played the tyrant, yet where others might speak with him on equal terms, he was a very contemptible man: and he received as great a mortification, as such a brutal man was capable of.

But as the scene lay in the house of commons, so the debates there were more important. A project was offered for making the militia more useful in order to the disbanding the army. But, to oppose that, the court shewed, how great a danger we had lately escaped, and how much of an ill leaven yet remained in the nation, so that it was necessary a force should be kept up. The court moved for a subsidy, the king having been at much extraordinary charge in reducing the late rebellion. Many, that were resolved to assert the business of the Test with great firmness, thought, the voting of money first was the decentest way of managing the opposition to the court: whereas others opposed this, having often observed, that the voting of money was the giving up the whole session to the court. The court wrought on many weak men with this topic, that the only way to gain the king, and to dispose him to agree to them in the business of the Test, was to begin with the supply. This had so great an effect, that it was carried only by one vote to consider the king's speech, before they should proceed to the supply t. It was understood, that when they received satisfaction in other things, they were resolved to give five hundred thousand pounds.

They went next to consider the act about the Test, and the violations of it, with the king's speech upon that head. The reasoning was clear and full on the one hand. The court offered nothing on the other hand in the way of argument, but the danger of offending the king, and of raising a misunderstanding between him and them. So the whole house went unanimously into a vote for an address to the king, that he would maintain the laws, in particular that concerning the test. But with that they offered to pass a bill, for indemnifying those who had broken that law; and were ready to have considered them in the supply that they intended to give.

The king expressed his resentments of this with much vehemence, when the address was brought to him. He said, some men intended to disturb the good correspondence that was between him and them, which would be a great prejudice to the nation: he had declared

This is, totis verbis, differing from the character given the lord keeper in his "Life" by his brother, Mr. R. North.

The Scotch carl of Middleton, then secretary of state, seeing many go out to vote against the court who were in its service, went down to the bar to reproach

them.

"Sir," said he to Captain Kendal," do you not command a troop of horse in his majesty's service?""Yes, my lord," replied the captain; but my brother died last night, and has left me 7007. a year!" Mr. Speaker Onslow says he had this from his uncle, who was present.-Oxford ed.

his mind so positively in that matter, that he hoped they would not have meddled with it. Yet, he said, he would still observe all the promises that he had made. This made some reflect on the violations of the edict of Nantes, by many of the late edicts that were set out in France, before the last that repealed it, in which the king of France had always declared, that he would maintain that edict, even when the breaches made upon it were the most visible and notorious. The house, upon this rough answer, was in a high fermentation. Yet, when one Cook said, that they were Englishmen, and were not to be threatened, because this seemed to be a want of respect, they sent him to the Tower; and obliged him to ask pardon for those indecent words. But they resolved to insist on their address, and then to proceed upon the petitions concerning elections. And now those, that durst not open their mouth before, spoke with much force upon this head. They said, it was a point upon which the nation expected justice, and they had a right to claim it. And it was probable, they would have condemned a great many elections; for an intimation was set round, that all those who had stuck to the interest of the nation, in the main points then before them, should be chosen over again, though it should be found that their election was void, and that a new writ should go out. By this means those petitions were now encouraged, and were likely to have a fair hearing, and a just decision: and it was believed, that the abject courtiers would have been voted out.

The king saw that both houses were now so fixed, that he could carry nothing in either of them, unless he would depart from his speech, and let the act of the test take place. So he prorogued the parliament, and kept it by repeated prorogations still on foot for about a year and a half, but without holding a session. All those who had either spoken, or voted, for the test, were soon after this disgraced, and turned out of their places, though many of these had served the king hitherto with great obsequiousness, and much zeal. He called for many of them, and spoke to them very earnestly upon that subject in his closet: upon which the term of closeting was much tossed about. Many of these gave him very flat and hardy denials others, though more silent, yet were no less steady: so that, when, after a long practice both of threatening and ill usage on the one hand, and of promises and corruption on the other, the king saw he could not bring them into a compliance with him, he at last dissolved the parliament; by which he threw off a body of men, that were in all other respects sure to him, and that would have accepted a very moderate satisfaction from him at any time. And, indeed, in all England it would not have been easy to have found five hundred men so weak, so poor, and so devoted to the court, as these were. So happily was the nation taken out of their hands by the precipitated violence of a bigoted court.

Soon after the prorogation, the lord Delamer was brought to his trial. Some witnesses swore high treason against him only upon report, that he had designed to make a rebellion in Cheshire, and to join with the duke of Monmouth. But, since those swore only upon hearsay, that was no evidence in law. One witness swore home against him, and against two other gentlemen, who, as he said, were in company with him; and that treasonable messages were then given to him by them all to carry to some others. That which gave the greatest credit to the evidence was, that this lord had gone from London secretly to Cheshire, at the time of the duke of Monmouth's landing, and that after he had stayed a day or two in that county, he had come up as secretly to London. This looked suspicious, and made it to be believed, that he went to try what could be done. The credit of that single witness was overthrown by many unquestionable proofs, by which it appeared that the two gentlemen, who he said met with that lord in Cheshire, were all that while still in London. The witness, to gain the more credit, had brought others into the plot, by the common fate of false swearers, who bring in such circumstances to support their evidence, as they think will make it more credible, but, being ill laid, give a handle to those concerned to find out their falsehood. And that was the case of this witness; for, though little doubt was made of the truth of that which he swore against this lord, as to the main of his evidence, yet he had added such a mixture of falsehood to it, as being fully proved, destroyed the evidence. As for the secret journey to, and again between London and Cheshire, that lord said, he had been long a prisoner in the Tower upon bare suspicion : he had no mind to be lodged again there; so he resolved in that time of jealousy to go out of the way: and hearing that a child, of

which he was very fond, was sick in Cheshire, he went thither: and hearing from his lady that his eldest son was very ill at London, he made haste back again. This was well proved by his physicians and domestics, though it was a thing of very ill appearance, that he made such journeys so quick and so secretly at such a time. The solicitor-general, Finch, pursuant to the doctrine he had maintained in former trials, and perhaps to atone for the zeal he had showed in the house of commons, for maintaining the act of the test, made a violent declamation, to prove that one witness with presumptions was sufficient to convict one of high treason. The peers did unanimously acquit the lord; so that trial ended to the great joy of the whole town; which was now turned to be as much against the court, as it had been of late years for it. Finch had been continued in his employment only to lay the load of this judgment upon him; and he acted his part in it with his usual vehemence. He was presently after turned out: and Powis succeeded him, who was a compliant young aspiring lawyer, though in himself he was no ill-natured man. Now the posts in the law began to be again taken care of; for it was resolved to act a piece of pageantry in Westminster-Hall, with which the next year began.

Sir Edward Hales, a gentleman of a noble family in Kent, declared himself a papist, though he had long disguised it; and had once to myself so solemnly denied it, that I was led from thence to see, there was no credit to be given to that sort of men, where their church, or religion, was concerned. He had an employment; and not taking the test, his coachman was set up to inform against him, and to claim the 500l. that the law gave to the informer. When this was to be brought to trial, the judges were secretly asked their opinions; and such as were not clear, to judge as the court did direct, were turned out and upon two, or three, canvassings the half of them were dismissed, and others of more pliable and obedient understandings were put in their places. Some of these were weak and ignorant to a scandal. The suit went on in a feeble prosecution; and in Trinity Term judgment was given.

There was a new chief justice found out, very different indeed from Jeffreys, sir Edward Herbert. He was a well bred and a virtuous man, generous, and good-natured. He was but an indifferent lawyer; and had gone to Ireland to find practice and preferment there. He unhappily got into a set of very high notions with relation to the king's prerogative. His gravity and virtues gave him great advantages, chiefly his succeeding such a monster as had gone before him. So he, being found to be a fit tool, was, without any application of his own, raised up all at once to this high post *. After the coachman's cause had been argued with a most indecent coldness, by those who were made use of on design to expose and betray it, it was said, in favour of the prerogative, that the government of England was entirely in the king: that the crown was an imperial crown, the importance of which was, that it was absolute: all penal laws were powers lodged in the crown, to enable the king to force the execution of the law, but were not bars to limit, or bind up, the king's power the king could pardon all offences against the law, and forgive the penalties; and why could not he as well dispense with them? Acts of parliament had been often superseded: the judges had sometimes given directions in their charges at circuits, to enquire after some acts of parliament no more; of which one late instance happened during the

• Sir Edward Herbert, born about 1646, was a younger brother of admiral Herbert, who will be next mentioned. They were sons of sir Edward Herbert, knight, of London. He was of Winchester and New College. He took his bachelors's degree in arts, and then became a student of the Middle Temple. He was successively attorney-general in Ireland, and chief justice of Chester. In 1683 he was knighted, and made attorney to the duke of York, when sir John Churchill was promoted to the mastership of the rolls in the place of sir H. Grimstone. In 1685, he was promoted to the lord chief justiceship of the king's bench, and made a privy councillor. In 1686, he sat as one of the ecclesiastical cominissioners. In the following year he was removed to be chief of the common pleas, because he would not interpret the law in the king's bench so as to take away the life of a soldier who deserted his colours upon Hounslow Heath. It is said that sir Robert Wright was promoted to his seat,

having promised to be more complying in shedding blood!

(Woolrych's Life of Jeffreys.). When James the Second abdicated, sir Edward followed him during his exile, and was made by the ex-monarch earl of Portland, and lord chancellor; consequently he was excepted out of the bill of indemnity. His conduct as detailed above shews that he was a mild, conscientious man. That he was fearless of offending the highest powers when his duty required it is further proved by his exposing Jeffreys upon the bench, by demonstrating his briberies and corruptions when in the west; which "extremely offended" the king.(Singer's correspondence.) Sir Edward published "A short Account of the Authorities upon which judgment was given in sir Edward Hale's case." This was refuted in pamphlets by a Mr. Attwood, and sir Robert Atkins.(Wood's Athens Oxon.) King William gave his estate to his brother, admiral Herbert.-Oxford edition of this work.

former reign an act passed concerning the size of carts and waggons, with many penalties upon the transgressors; and yet, when it appeared that the model prescribed in the act was not practicable, the judges gave direction not to execute the act.

These were the arguments brought to support the king's dispensing power. In opposition to this it was said, though not at the bar, yet in the common discourse of the town, that if penalties did arise only by virtue of the king's proclamation, it was reasonable that the power of dispensing should be only in the king: but since the prerogative was both constituted and limited by law, and since penalties were imposed to force the observation of laws, that were necessary for the public safety, it was an overturning the whole government, and the changing it from a legal into a despotic form, to say that laws, made and declared not to be capable of being dispensed with, where one of the penalties was an incapacity, which by a maxim of law cannot be taken away, even by a pardon, should at the pleasure of the prince be dispensed with; a fine was also set by the act on offenders, but not given to the king, but to the informer, which thereby became his. So that the king could no more pardon that, than he could discharge the debts of the subjects, and take away property. Laws of small consequence, when a visible error not observed in making them was afterwards found out, like that of the size of carts, might well be superseded: for the intention of the legislature being the good of the subject, that is always to be presumed for the repeal of an impracticable law. But it was not reasonable to infer from thence, that a law made for the security of the government, with the most effectual clauses that could be contrived, on design to force the execution of it, even in bar to the power of the prerogative, should be made so precarious a thing, especially when it was so lately asserted with so much vigour by the representatives of the nation. It was said, that, though this was now only applied to one statute, yet the same force of reason would hold to annul all our laws: and the penalty being that which is the life of the law, the dispensing with penalties might soon be carried so far, as to dissolve the whole government and the security that the subjects had were only from the laws, or rather from the penalties, since laws without these were feeble things, which tied men only according to their own discretion.

Thus was this matter tossed about in the arguments, with which all people's mouths were now filled but judges, who are beforehand determined how to give their opinions, will not be much moved even by the strongest arguments. The ludicrous ones used on this occasion at the bar were rather a farce, fitter for a mock trial in a play, than such as became men of learning in so important a matter. Great expectations were raised, to hear with what arguments the judges would maintain the judgment that they should give. But they made nothing of it; and without any arguing gave judgment for the defendant, as if it had been in a cause of course.

Now the matter was as much settled, as a decision in the King's Bench could settle it. Yet so little regard had the chief justice's nearest friends to his opinion in this particular, that his brother, admiral Herbert, being pressed by the king to promise that he would vote the repeal of the test, answered the king very plainly, that he could not do it either in honour, or conscience. The king said, he knew he was a man of honour, but the rest of his life did not look like a man that had great regard to conscience. He answered boldly, he had his faults, but they were such, that other people, who talked more of conscience, were guilty of the like. He was indeed a man abandoned to luxury and vice. But, though he was poor, and had much to lose, having places to the value of 40007. a year, he chose to lose them all rather than comply. This made much noise: for as he had a great reputation for his conduct in sea affairs, so he had been most passionately zealous in the king's service, from his first setting out to that day. It appeared by this, that no past services would be considered, if men were not resolved to comply in every thing. The door was now opened, so all regard to the test was laid aside. And all men that intended to recommend themselves took employments, and accepted of this dispensing power. This was done even by some of those who continued still protestants, though the far greater number of them continued to qualify themselves according to law *.

* Arthur Herbert, the admiral, who spoke so fearlessly to James, had been employed by Charles the Second at Tangier, and Algiers. He became an exile in Holland at

the time his brother was trying the bishops. He will be noticed in future pages.-Noble.

Many of the papists, that were men of quiet or of fearful tempers, did not like these methods they thought the priests went too fast, and the king was too eager in pursuing every thing that was suggested by them. One Peter, descended from a noble family, a man of no learning, nor any way famed for his virtue, but who made all up in boldness and zeal, was the jesuit of them all that seemed animated with the most courage. He had, during the popish plot, been introduced to the king, and had suggested things that shewed him a resolute and undertaking man. Upon that the king looked on him as the fittest man to be set at the head of his counsels. So he was now considered as the person who of all others had the greatest credit. He applied himself most to the earl of Sunderland, and was for some time chiefly directed by him*.

The maxim that the king set up, and about which he entertained all that were about him, was, the great happiness of an universal toleration. On this the king used to enlarge in a great variety of topics. He said nothing was more reasonable, more christian, and more politic and he reflected much on the church of England, for the severities with which dissenters had been treated. This, how true, or just, soever it might be, yet was strange doctrine in the mouth of a professed papist, and of a prince on whose account, and by whose direction, the church party had been, indeed, but too obsequiously, pushed on to that rigour. But, since the church party could not be brought to comply with the design of the court, applications were now made to the dissenters: and all on a sudden the churchmen were disgraced, and the dissenters were in high favour. Chief justice Herbert went the western circuit after Jeffreys's bloody one. And now all was grace and favour to them. Their former sufferings were much reflected on, and pitied. Every thing was offered that could alleviate their sufferings. Their teachers were now encouraged to set up their conventicles again, which had been discontinued, or held very secretly, for four or five years. Intimations were every where given, that the king would not have them, or their meetings to be disturbed. Some of them began to grow insolent upon this shew of favour; but wiser men among them saw through all this, and perceived the design of the papists was now, to set on the dissenters against the church, as much as they had formerly set the church against them and therefore, though they returned to their conventicles, yet they had a just jealousy of the ill designs, that lay hid under all this sudden and unexpected shew of grace and kindness: and they took care not to provoke the church party.

Many of the clergy acted now a part that made good amends for past errors. They began to preach generally against popery, which the dissenters did not. They set themselves to study the points of controversy: and upon that there followed a great variety of small books, that were easily purchased and soon read. They examined all the points of popery with a solidity of judgment, a clearness of arguing, a depth of learning, and a vivacity of writing, far beyond any thing that had before that time appeared in our language. The truth is, they were very unequally yoked; for, if they are justly to be reckoned among the best writers that have yet appeared on the protestant side, those they wrote against were certainly among the weakest that had ever appeared on the popish side. Their books were poorly but insolently written; and had no other learning in them, but what was taken out of some French writers, which they put into very bad English; so that a victory over them need have been but by a mean performance.

This had a mighty effect on the whole nation; even those who could not search things to the bottom, yet were amazed at the great inequality that appeared in this engagement. The papists, who knew what service the bishop of Meaux's book had done in France, resolved to pursue the same method here in several treatises, which they entitled "Papists represented and misrepresented;" to which such clear answers were written, that what effect soever that artifice might have, where it was supported by the authority of a great king, and the terror of ill usage, and a dragoonade in conclusion, yet it succeeded so ill in England, that it

Father Edward Peters had some abilities, but these were completely rendered nugatory by his vanity, ambition, and rashness. It is evident from the Clarendon papers, that all the moderate statesmen of the period were opposed to him. Lords Clarendon, Nottingham, and others,

would not sit at the council board with him. He was James the Second's confessor. Frequent notices of him will occur in the following pages, and further information may be found in Dodd's Hist. of the English Church, Dalrymple's Memoirs, Clarendon Correspondeuce, &c.