IN 1689, following the success of the Glorious Revolution, the Convention parliament abolished the royal dispensing power.  Englishmen rejoiced. “Now and perhaps only now we may call our selves the Free-born subjects of England,” wrote John Somers, “fully secured… from the heavy and insupportable yoke of arbitrary power.” [1] There was good reason to rejoice; the dispensing power in James II’s hands had proved a dangerous thing indeed.  The Catholic king had granted dispensations freely, setting aside statutes to bring Catholics into his service and, presumably, into his designs for absolutism.  He had used his power to defy the law and, more particularly, to defy the Lords and Commons in parliament who made it.  The rule of law could not be assured, nor the supremacy of parliament, while the king had a power to grant dispensations at his will and whim.  The abolition of the royal non obstante was essential to the accomplishment and to the security of the Revolution.

Yet, in 1689 not all Englishmen saw it so.  There were insistent voices in the Convention for preserving the power which nearly everyone since and most even then regarded as a tool of absolute monarchy.  Why the objections, why the reluctance to abolish what so clearly threatened the new order?  Was there a lack of confidence in the Revolution or in its aims?  How in 1689 could Englishmen still declare for the prerogative?  How could those who did not share such a view still respect it?  These questions, and answers to them,

An earlier version of this paper was read before the American Society for Eighteenth-Century Studies Midwest Regional Meeting in Toledo, Ohio, 30 October 1976.

1 A Vindication of the Proceedings of the Late Parliament of England. An. Dom. 1689. Being the First in the Reign of Their Present Majesties King William and Queen Mary (London, 1690), p. 2.

434

derive in part from the character and the history of the dispensing power itself, in part from the circumstances which caused it to become a bone of contention and in part from the special situation in 1689.

Briefly, the power of dispense was the power to allow exceptions to the law, to permit what otherwise would be illegal, to grant a subject license to act as if the law dispensed did not exist.  Its beginnings in England can be traced to the thirteenth century; Henry III was the first king to dispense, presumably in imitation of the Pope.  There were limits upon the king’s power.  In some cases these are rather obscure, but, essentially, the king could offer no exceptions to common law; he could dispense only with such law as he had had a part in making, statute or enacted law.  He could not act against the public weal or safety nor license a public nuisance; he could permit no subject to act against the interest of another; he could forego or excuse a penalty only if it were due the crown.  There were, thus, no licenses to murder, burn, or rob, to pollute streams, or to stop traffic on a roadway.  But English kings did grant subjects license to import French wines, to worship God according to rites other than those of the Church of England, to transmute metals (if they could), to serve as sheriff for more than one year, to be pardoned for the crime of murder - all statute non obstante, notwithstanding.

Until late in the sixteenth century, neither the dispensing power nor the crown’s use of it was what might be called an issue.  For, it was agreed, though king and parliament enacted statute, it was the king’s responsibility alone to administer it.  Statutes might be mistaken or badly drawn; policy, mercy, or simple justice might direct a king to grant exceptions.  The king was not expected “to destroy a Law,” but only to “supply its Defects, pardoning a condemn’d Innocent, or a hopeful Penitent, or dispensing with a Law to one, that by particular Accident, the Law in its Rigour would undo.” [2]

On occasion, there were objections.  Edward III, for example, sold to wool merchants license to ignore certain export laws - this primarily to finance his wars against the French.  The merchants did

2. [Thomas Osborne, Duke of Leeds], The Thoughts of a Private Person; About the Justice of the Gentlemen’s Undertaking at York, Nov. 1688 (1689), p. 17.  he king had other discretionary powers in administering law including, among others, power to pardon offenders, to suspend laws, and in certain circumstances to instruct judges.

435

object, less to the sale than to the price demanded. [3] And there were occasional tests at law.  Henry VIII was informed by his judges that he could not dispense with statutes which had not yet been enacted, no matter how lucrative the traffic promised to be. [4] But, in general, the courts tended to favor the crown and the dispensing power over statute and objection. [5]

The dispensing power became a serious point of contention in the reign of Elizabeth I.  In an effort to increase royal revenues and to expand royal influence in economic affairs, the queen enlarged upon the example set by her predecessors, granting (or selling) royal patents of monopoly, some, though not all, non obstante statute.  Parliament men objected.  They had hopes and aspirations of their own.  They feared the extension of the queen’s influence over trade and manufacturing; they feared her efforts to tap a rich source of income independent of parliament’s subsidies and taxes.  Further, parliament men were no longer entirely willing to allow the queen free rein in administering law.  Attitudes toward law and toward lawmaking were changing.  In times before, law had been regarded largely as a static thing; new statutes were enacted to explain, expand upon, clarify, or declare policy on principles already long

3. See Eileen Power, The Wool Trade in English Medieval History Being the Ford Lectures (Oxford, 1941), especially Lecture 4, “The Taxation of Wool,” pp. 63-85.

4. Patent of Bell Metal Case (34 Hen. 8) in Sir James Dyer, Reports of Cases in the Reigns of Henry VIII, Edw. VI, Q. Mary, and Q. Eliz. Taken and Collected by Sir James Dyer Knt. Some Time Chief Justice of the Common Pleas, trans. John Vaillant (Dublin, 1794), I, 52a.

5. See for example the landmark 1487 Case of the Sheriffs in Anni Regis Henrici Septimi (Tottell) (London, 1555), fols. 6-7, which case, or more particularly Sir Edward Coke’s later report and interpretation of it, was held through the seventeenth century to establish the authority of the dispensing power over statute.  See [Sir Edward Coke], The Twelfth Part of the Reports of Sir Edward Coke Kt. of Divers Resolutions and Judgments given upon Solemn Arguments, and with great Deliberation and Conference with the Learned Judges in Cases of the Law, the most of them very Famous, being of the Kings especiall Reference from the Council Table, concerning the Prerogative (London, 1656), p. 18 . On the early history of the non obstante, see William Petyt, Jus Parliamentarium: Or The Ancient Power, Jurisdiction, Rights and Liberties, of the Most High Court of Parliament, Revived and Asserted (London, 1737), especially pp. 155-75 or, more recent, Paul Birdsall, “‘Non Obstante’ A Study in the Dispensing Power of English Kings,” in Essays in History and Political Theory in Honor of Charles Howard Mcllwain (Cambridge, Mass., 1936), pp. 37-76 and E. F. Churchill’s three articles, all published in the Law Quarterly Review: “The Dispensing Power of the Crown in Ecclesiastical Affairs,” 38 (1922), 297-316, 420-34; “The Crown and the Alien,” 36 (1920), 402-28; and “The Dispensing Power and the Defence of the Realm,” 37 (1921), 412-41.

436

established.  But in Elizabeth’s day, this was changing.  New circumstances, new issues, were requiring the enactment of what was undoubtedly new law.  These laws were more clearly agreements between the queen and her subjects in parliament, agreements reflecting a careful settlement and balance of interests.  It is not surprising that Elizabeth’s subjects objected when they saw the queen dispense with these agreements in such cases as she, though perhaps not they, saw fit in favor of such interests and policies as she, not they, sought to further.

But how was the dispensing power to be stopped?  There were difficulties, Elizabeth’s subjects, then James’s and Charles’s knew.  Cases were brought before the courts; the judgments, as always, tended to favor the prerogative. [6] Bills were brought before parliament.  But what law could parliament enact that the crown in turn could not dispense? [7]

Further, the attack was not single-minded.  Englishmen still saw the non obstante, in certain of its customary uses, as an instrument of justice, in yet others, a necessary convenience.  Many statutes were indeed outdated, unduly harsh, or simply badly drawn.  It was hard to think, for example, of obeying to the letter the old Statute of Mortmain, Elizabeth’s Statute of Artificers, or the 1604 Leather Act. [8]  It was easy to buy a dispensation.  Englishmen would not choose to cripple a power which protected them from the rigors of the law.

Why not repeal defective laws; why not rewrite the ill-drawn clauses?  The remedy seems so simple.  But Englishmen did not

6. The decision in Darcy vs. Allen (or the Case of Monopolies) (1603) set certain limits upon the crown’s power to grant patents of monopoly; that in the Case of the Penal Statutes (1605) limited the crown’s power to delegate authority to grant the non obstante.  However, the crown continued to grant patents, including patents non obstante, and to grant dispensations through agents.  See J. W. Gordon, Monopolies by Patents and the Statutable Remedies Available to the Public (London, 1897), pp. 192-234.  The decision in Bate’s Case (1606) clearly favored the prerogative.  For recent comment see Francis Oakley, “Jacobean Political Theology: The Absolute and Ordinary Powers of the King,” in Journal of the History of Ideas, 29 (1968), 323-46.

7. Parliament men were well aware of the implications of this point.  See, for example, debates in the House of Commons on the Great Contract (1612) and the Petition of Right (1628).

8. The Statute of Mortmain (1279) forbade the sale, lease, or donation of lands to the church; the Statute of Artificers (1563) set limits upon wages and established terms and conditions of apprenticeship; the Leather Act prescribed in the preparation of leather certain processes which required the use of materials not available in England.

437

accept it, for two reasons.  First, sometimes it was only a single clause of an otherwise useful statute which required correction.  Why risk the possibility of destroying a good act for the sake of a single clause? [9] Second, old habits of thought died hard.  And it was still assumed that it was chiefly the crown’s responsibility to administer the law and to remedy the law’s defects.  Further, parliament sat rarely and there was other business for it to attend to when it did.  Lawmakers made law; they did not often repeal it.

In the reigns of Charles II and James II, contention sharpened.  Charles’s own Cavalier parliament attempted to guard its Irish Cattle Act (1667), among others, from the king’s non obstante.  Irish cattle were public nuisances, parliament men, English graziers, and the act itself declared.  The king had no power to admit the import of nuisances.  But did he?  Was the statute’s declaration enough to make beef cattle, ordinarily counted good and useful, harmful to the public well-being?  The Earl of Clarendon, Charles’s minister, for one, thought not. [10] The king chose not to test the point and did not dispense; but in 1672 he did try to soften the same parliament’s harsh Act of Uniformity, offering liberty and granting dispensations to dissenting preachers. [11]  And here he was stopped, not by any formal acts of Commons or Lords, but by their simple threat to bankrupt him.  If he insisted upon granting dispensations to nonconformists, parliament made clear, there would be no grant of money for the Dutch War.

Charles’s subjects did not rely upon the power of the purse to carry the argument.  In 1675 the test case of Thomas vs. Sorrell was brought before the Court of Exchequer Chamber. [12] What limits,

9. The Leather Act is a good example of this.  Designed to settle a lengthy and complicated controversy between leather sellers and leather craftsmen, it was defective only in the clause which required English leather processers to use a method practicable only in France.  No one wished for the sake of the clause to open the controversy again.

10. See Carolyn A. Edie, The Irish Cattle Bills: A Study in Restoration Politics (Philadelphia, 1970), especially Chs. iv, iii.

11. In 1662 Charles II proposed, but did not offer, a limited toleration; in 1672 he issued the Declaration of Indulgence.  See Frank Bate, The Declaration of In­dulgence 1672; A Study in The Rise of Organised Dissent (London, 1908).

12. There are three printed accounts of the trial: Jos. Keble, Reports in the Court of King’s Bench at Westminster, From the XIIth to the XXXth Year of the Reign of our Late Sovereign Lord King Charles II (London, 1685); Sir Creswell Levinz, The Reports of Sir Creswell Levinz, Knt. Late one of the Judges in the Court of Common Pleas, at Westminster, Containing Cases Heard and Determined in the Court of King’s Bench, during the Time that Sir Matthew Hale, Sir Richard [Rainsford, and Sir William Scroggs were Chief Justices there; as also of Certain Cases in other Courts at Westminster, during that Time (Dublin, 1793); and Edward Vaughan, The Reports and Arguments of that Learned Judge Sir John Vaughan Kt. Late Chief Justice of His Majesties Court of the Common Pleas Being All of them Special Cases, and many wherein he Pronounced the Resolution of the Whole Court of Common Pleas; At the time he was Chief Justice there (London, 1677). The Judges of the Courts of Common Pleas and King’s Bench and the Barons of the Exchequer sat on the Court of Exchequer Chamber.  After argument each in turn gave his opinion; decision was by majority vote, but there was no majority opinion as such; each judge having his own reasons for his vote.]

HHC: [bracketed] reported on page 439 or original

438

it asked, did law place upon the royal dispensing power?  The case itself involved a Stepney wineseller, an informer, a dispensation of James I, a statute of Charles II, and, indirectly, the Vintners Company of London . Its particulars are of no special interest here.  At the trial, all but one of the assembled judges agreed as others had before them that precedent offered no useful guide, statute no authority to bar or restrict the prerogative.  Only John Vaughan, Chief Justice of the Court of Common Pleas, argued differently.  The king, he said, had no more power to dispense with statute than he had power to dispense with common law, which was to say, none.  For, in Vaughan’s eyes, statute and common law were the same; common law was nothing more than enacted law itself, enacted law of which the record was lost in time.  Further, Vaughan argued, statute did bind the king.  For example, the king could not license murder.  But what defined murder?  Statute.  Not just any killing was murder, but killing under such circumstances as statute described.  To put it another way, what was a murder but an illegal killing?  Illegal by what law?  Statute.  There was no question in Vaughan’s mind. Statute had the power to stop the non obstante. [13]

This was a visionary opinion - visionary in 1675, that is - acted upon in 1689.  What might have happened we do not know.  Neither Charles nor parliament chose to press the issue.  The Popish plot, the Exclusion crisis intervened, and then, in 1685, Charles’s death.  But the Vaughan opinion, which was widely circulated, taught two lessons to those who cared to learn.  The dispensing power could be bound only by statute and that only if statute were acknowledged to have an authority to bind common law, to bind the king, to bind the constitution.

James II, Charles’s brother and successor, exercised the non ob-

13. Vaughan, Reports, pp. 332-42.  Before his appointment to the bench, Vaughan sat in the House of Commons.

439

stante freely, dispensing with the statutes governing religion to bring Catholics into the church, the army, and the government, a policy calculated by everyone except James himself to arouse fear and hostility in his subjects’ hearts.  The judges granted approval (Godden vs. Hales, 1686).  But no matter what powers the law accorded the king, it was intolerable that he should employ them against the interests of his subjects.  They called in William of Orange; James left for France.

King James had fled.  William and Mary were in England, ready to assume the crown.  There was no longer any question. Parliament had a power to overrule the king; statute had a power to settle the constitution.  Why didn’t the Convention now move immediately to abolish the dangerous non obstante?  William of Orange had made his position clear.  On 10 October 1688 he had issued a declaration “Of the Reasons inducing him to appear in Arms in the Kingdom of England.”  Among other things, William declared that James’s “evil Counsellors… did invent and set on foot the King’s dispensing Power,” by which they pretended he could dispense with laws and, said the Prince, “so rendered those Laws of no effect.” [14] William would not defend the dispensing prerogative.

But the Convention could not agree to attack it.  The first test came in drawing the Declaration of Right, which William and Mary were to accept on being offered the crown of England.  The Commons pressed for a flat statement.  King James, they said, had endeavored to “subvert and extirpate the Protestant Religion and the Laws and Liberties of this Kingdom, by assuming and exercising a Power of dispensing and suspending of Law.”  They would declare “that the pretended Power of dispensing or suspending of laws, by Regal Authority, without Consent of Parliament, is illegal.” [15]

14. The Declaration of His Highness William Henry (by the Grace of God) Prince of Orange, & c. Of the Reasons Inducing him to appear in Arms in the Kingdom of England, for Preserving of the Protestant Religion, and for Restoring the Laws and Liberties of England, Scotland and Ireland (The Hague, 1688), p. 2.

15. Journals of the House of Commons, X, 17, 20, 21; Anchitell Grey, Debates of the House of Commons, from the Year 1667 to the Year 1694 (London, 1763), IX, 74.  In 1689 parliament moved against the royal suspending power as well as the dispensing power; however, it did so virtually without debate.  In fact, the suspending power never excited the controversy the dispensing power did.  This may be because the effect of the suspending power was general and public, in contrast to the dispensing power, which was specific and private in its uses, or because kings did not employ the suspending power in what might be called [controversial ways.  There was on occasion (Thomas vs. Sorrell, for example) judicial concern lest the non obstante be granted so widely as to constitute virtual repeal of law, but this was not seen as suspension.  There was what seems to be a positive effort in 1673 to confuse the political debate on Charles II’s Declaration of Indulgence by assertions that the king had suspended, not dispensed with, law (probably because the king had no power to suspend laws governing religion and thus, it might be argued, no power to issue the Declaration).]

HHC: [bracketed] reported on page 441 or original

440

But was the power pretended?  Had King James or his predecessors assumed a power they did not have?  The Lords did not think so.  The judges were called in.  A king had no authority to dispense at all, said Sir Robert Atkyns of the Court of Common Pleas.  The king did indeed have such a power, disagreed Sir William Dolben of King’s Bench.  “The judges have always been of that opinion.” [16] The Lords hesitated.  They would do away with the king’s power to dispense only in such cases as “by consequence, would subject all the Laws to his Will and Pleasure.” [17] Lord Falconberg explained.  A general declaration against the dispensing power might be prejudicial, rather than beneficial, to the king’s subjects, for, he said, among other things, “the Validity of Multitudes of Letters Patents and Grants from the Crown, in the Reigns of Several Kings and Queens, do depend upon Non Obstante.” [18]

The Commons would not be so cautious.  John Somers argued for rejections of the Lords’ clause.  The bar against “the Will and Pleasure of the King,” was not enough.  The Commons insisted “That the pretended power of Dispensing with Laws, by Regal Authority, as it has been assumed and exercised of late, is illegal.”  The truth of that proposition, they declared, “cannot be denied.”  And in the end, the Lords agreed  In February, the Declaration of

16 Manuscripts of the House of Lords 1689-90 (London, 1889), pp. 29-30.  James II’s judges had decided in favor of the king’s authority to grant (particular, not general) dispensations as recently as 1686 (Godden vs. Hales).  The 1688 acquittal of the seven bishops on charges of seditious libel for refusing to accord the king a general power to dispense with ecclesiastical laws has been widely held to mark a victory against the prerogative; however, despite the recital of precedents and the public debate, the decision in the trial itself turned on other points.  Still, not only Atkyns but many others of his own time and later believed the power to be illegal.  In 1765, for example, Blackstone called the power “pretended”; in 1775 Daines Barrington termed it “a shock almost to common sense” (Sir William Blackstone, Commentaries on the Laws of England, ed. by George Sharswood [Philadelphia, 1863], I, bk. I, 181, 341; Daines Barrington, Observations on the More Ancient Statutes from the Magna Charta to the Twenty-First of James I. cap. xxvii [London, 1775], p. 182).

17. Lords MSS 1689-90, pp. 29-30.

18. Commons Journals, X, 25.

441

Rights, later enacted as the Bill of Rights, was accepted by William and Mary. [19]

This accomplished, the Convention turned to the task of settlement.  Differences had been glossed over in the common effort to draft the Declaration; now they had to be worked out.  The Declaration said the dispensing power to be illegal only as it had been “assumed and exercised of late”; as the Lords insisted, nothing was said in it of precedent or of the power itself. [20] The Declaration spoke only in general terms, of ancient rights; by agreement, little was said of present circumstances, nothing of new law. [21] Settlement of the dispensing question would certainly require new law.  For whatever parliament men said, there was little in legal precedent to bar the non obstante, little at all except their own intention.  But as they well know, custom, precedent, the constitution itself had been overturned by Revolution.  What mattered now was intention and what the Convention, as a parliament, would decide to do.

What parliament would do was at this point by no means clear.  The Commons was still resolutely for abolishing the dispensing power entirely; they saw its dangers clearly.  “We know the King has prerogatives,” said Sir Henry Capel, “but to say ‘he has a Dispensing Power’ is to say there is no Law.”  Sir William Williams concurred.  “Is there anything more pernicious than the Dispensing Power?  There is the end of all Legislative Power, gone and lost.” [22] But again the Lords would not agree.  The non obstante had its uses, they said.  The king’s power to dispense with clauses in the Navigation Act made possible “the Negro-Trade, which the English drove

19. Commons Journals, X, 26; Grey, Debates, IX, 82; Lords MSS 1689-90, p. 30.  Somers, M.P. for Worcester, later to be named Attorney-General (1692), Lord Keeper of the Great Seal (1693), and then Lord Chancellor (1697), played a leading role in drawing of the Revolution settlement.

20. According to Bishop Burnet: “King James’s party took great advantage from this; and said, though the main clamour of the nation was against the dispensing power, yet when the convention brought things to a settlement, that did not appear to be so clear a point” (Gilbert Burnet, Bishop Burnet’s History of His Own Time, ed. M. J. Routh [Oxford, 1833], III, 400).  But see [James Ralph], The History of England: During the Reigns of K. William, Q. Anne and K. George I, with an Introductory Review of the Reigns of the Royal Brothers, Charles and James, in which are to be found the seeds of the Revolution (London, 1744), II, 54.

21. Grey, Debates, IX, 51.  See also James MacPherson, The History of Great Britain, from the Restoration to the Accession of the House of Hannover (London, 1775), I, 566.

22. Grey, Debates, IX, 257, 258; William Cobbett, ed., Parliamentary History of England (London, 1806-20), V, 262, 263. Capel sat for Cockermouth; Williams, a lawyer, for Beaumaris.

442

with the Spaniards, of which they had cut off the Dutch.” [23] It was the king’s non obstante which permitted Welshmen to sit as judges, sheriffs to leave their shires, the king himself to pardon murder and certain other crimes, to grant useful charters and patents. [24] Need these benefits be lost because a king had on occasion abused the prerogative?

Then, in May, the Commons moved.  The house voted to tack to the important bill for securing the rights and liberties of the subject and settling the succession to the crown, better known as the succession bill, a proviso abolishing the non obstante “of or to any Statute” except, they added, in such cases as dispensations might be expressly allowed in a particular statute itself. [25] To this the Lords refused to agree; they would reserve to the king a broader power to dispense.  They asked the judges for advice, then on 24 May ordered them “to prepare an Act for regulating Non Obstantes.” [26]

The Commons would not accept the Lords’ reservations.  They would allow the king nothing of the power which had proved, in Sir Thomas Clarges’ words, “so dismal to our liberties.”  “Should you agree with the Lords in this,” William Sacheverell warned his colleagues, “the Dispensing Power is confirmed for the future.”  For who was to say when the king might dispense?  “It is not fit a Judge should chuse what laws are fit to be executed.” [27]

The house agreed.  “The Dispensing Power against Statute Laws hath been assumed within Time of Memory,” the members de-

23. [Abel? Boyer], The History of King William the Third (London, 1702), II, 162-63; White Kennett, A Complete History of England: With the Lives of All the Kings and Queens Thereof: From the Earliest Account of Time, to the Death of His late Majesty King William III (London, 1719), III, 585.

24. The House of Lords ordered a listing of all dispensations granted by James II (some 35), and all pardons non obstante granted by Charles II in his last four years (48, some naming more than one person), and by James II (127) (Lords MSS 1689-90, pp. 300-308; Journals of the House of Lords, XIV, 394).

25. Commons Journals, X, 126; Ralph, History, II, 131. Both N. Tindal (1744) and James MacPherson (1776) mistakenly report this proposal as the final settlement of the issue.  See Rapin de Thoyras, The History of England by Mr. Rapin de Thoyras. Continued From the Revolution to the Accession of King George II, trans. and continued by N. Tindal (London, 1687-1744), III, 56; MacPherson, History, I, 610.

26. Lords MSS 1689-90, pp. 346-47; Lords Journals, XIV, 218.

27. Grey, Debates, IX, 353-54; Commons Journals, X, 190 . Clarges, M.P. for Oxford University, was brother-in-law to the Restoration’s General Monck, later Duke of Albemarle.  Sacheverell, member for Heytesbury, had been active for the Exclusion of James II.

443

clared.  “And generally the Mischiefs that have been consequent thereupon, are so great, that the Commons can find no remedy to prevent the same but by insisting upon this [its own] Clause and Proviso.” [28] No agreement had been reached when parliament recessed in August.

The question was complicated and to a degree confused by others being debated at the same time.  In May a bill of indemnity was before the House of Commons.  Some wanted to exclude from its benefits those judges who had spoken for the dispensing power in Godden vs. Hales (1686) or the Case of the Seven Bishops (1688).  “I would except out of the pardon all who gave opinions with my Lord Chancellor, for the Dispensing Power,” declared Mr. Harbord.  “That is a Breach of their Oath, and a great one,” agreed Mr. Garroway, “and of that you have the judgments of the Lords and Commons.”  “The Dispensing Power was the last Grievance, and a bloody sacrifice to the Prince’s pleasure, to the subversion of the whole Government,” Mr. Hawles concurred.”  But others were not so sure.  “I cannot be persuaded that giving the King advice in the Dispensing Power be made capital,” argued Sir Joseph Tredenham.  “I believe it first an invasion of our rights, but the exercise of it long became a common error.”  “Whoever the Judges were, they are great Criminals; but,” demurred Mr. Brewer, “I would have the Offence certain.” [30] And the house, it appears, was far from certain.  For, on 23 May, the members voted only to declare that “The Asserting, Advising, and Promoting of the Dispensing Power, and Suspending of Laws without consent of Parliament, as it has lately been exercised… is one of the Crimes, for which some Persons may justly be excepted out of the Bill of Indemnity “[31] However, in mid June, after hearing the report of Mr. Justice Powell and several others who had been present at the trials of Godden vs. Hales and

28. Commons Journals, X, 214; Lords Journals, XIV, 273.

29. Grey, Debates, IX, 256, 257; Cobbett, Parliamentary History V, 262-63.  William Harbord, M.P. for Launceston, had first been elected to parliament in 1661; he had supported Exclusion, gone into exile at James II’s accession, and returned to England with William.  William Garroway, in 1689 member for Arundel, had also been elected first in 1661; in 1662 he had been appointed Gentleman of the Privy Chamber to Charles II.  John Hawles, lawyer and writer, was elected to sit for Old Sarum in March 1689.

30. Grey, Debates, IX, 257, 300, 325; Cobbett, Parliamentary History, V, 262, 301. Tredenham sat for St. Mawes, Cornwall; John Brewer entered parliament in 1689 as member for Romney port.

31. Commons Journals, X, 146.

444

the Seven Bishops and had heard who had said what, the house did vote to except by name four judges held to have defended the dispensing power. 32]

Neither vote did anything to advance a solution to the question dividing the Lords and Commons.  The first condemned, as did the Declaration of Right, the dispensing power only as it had “lately been exercised.”  The second condemned judges for decisions which, if politically unsound, were nevertheless defensible in law.  Still, the indemnity debate revealed, as did the nearly concurrent debate on the succession bill, how strong was the feeling in the Commons against the non obstante.

Also revealing were the various efforts, in both houses, to deal with the question of religious dissent.  The issue at this point was not really toleration, perhaps not really religion.  For one thing, Calvinist William, though openly tolerant, was not expected to favor Catholics. [33] For another, Protestant dissenters had, on the whole, distrusted James; despite his offers of indulgence, few had accepted.  There were in the press occasional attacks upon those who had “by the Use of their Liberty, acknowledg’d an Illegal Dispensing Power.” [34] But toward the rest, and on the point of religious dissent itself, attitudes were changing.  “The prevailing opinion now in England is Latitudinarian,” it was observed in 1689.  “Most Men are so far improv’d in their Judgments as to believe, that Heaven is not entail’d upon any particular Opinion.” [35] There were still to be severe strictures against Catholics, but a bill promising Protestant dissenters religious liberty, if not yet political privilege, was before

32. Commons Journals, X, 185.  The four excepted were Sir Edward Herbert, Sir Francis Withens, Sir Richard Holloway, and Sir Robert Wright; other persons were also excepted on other grounds.  For Herbert’s defense of his opinion in Godden vs. Hales, see his A Short Account of the Authorities in Law, upon which Judgement was given in Sir Edw. Hales His Case (London, 1688); also W.A., The Lord Chief Justice Herbert’s Account Examin’d (London, 1689), and Sir Robert Atkyns, “A Postscript: Being some Animadversions upon a Book writ by Sir Edward Herbert, Lord Chief Justice of the Common Pleas,” in T. B. Howell, ed., A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors From the Earliest Period to the Year 1783 (London, 1816-26), XI, 1267-80.

33. See, however, note 44, below.

34. For example, A Letter to a Bishop Concerning the Present Settlement and the New Oaths (London, 1689), p. 10.

35. N.T., Some Remarks upon Government, and Particularly upon the Establishment of the English Monarchy Relating to this Present Juncture (London, [1689]), pp. 3-4.

445

parliament in the spring of 1689 and made law before the year was out. [36] It would not be easy, it was remarked, “to persuade so great a company of people [dissenters], that they find their account in the late Revolution, unless they be admitted by Law to enjoy the same advantages under the present King [William], which by Dispensing with, and an usurpation over the Law, they were possessed of under the last.” [37]

More difficult was the question raised by clergy who, for reason of religious scruple, would not take the oath of allegiance to William and Mary while James II, the crowned king, yet lived.  In March a bill was introduced in parliament abrogating the old oaths of supremacy and allegiance to James and appointing new oaths to William and Mary.  In the Lords, a clause was added exempting bishops from taking new oaths unless specifically required to do so by the king and council. [38] This would, in effect, have granted the king a power to dispense with the act establishing oaths and the Commons would not have it. “I see it evidently here… that a dispensing Power is asserted, a Power in the King and Council to exempt a part of the People from their Allegiance,” argued Sir Henry Goodrick.  “No doubt, any thing shall be granted, if you will give this Power of dispensing with this Law.” [39] And the Commons agreed.  There were to be no exemptions, no dispensations.

In December, as the deadline for taking the new oaths approached, the bishops of London and St. Asaph, both themselves willing to take the oath, pressed the archbishop of Canterbury to know what could be done to prevent the deprivation of those of their colleagues who would not.  “Could they take no steps toward the government?”  The two proposed some expedients, including a proposal that “a short bill be passed, giving the King power to dispense with them during pleasure.”  But Canterbury, together with Norwich and Ely, all three to be ultimately nonjurors, gave no encouragement.  The king himself might act, should he choose, they

36. 1 W. & M. c. 9; 1 W. & M. c. 15; 1 W. & M. c. 17; 1 W. & M. c. 18.

37. A Letter to a Friend, upon the Dissolving of the late Parliament, and the Calling of a New One (London, 1690), p. 1; also Lords Journals, XIV, 154, 159.

38. According to Dalrymple, King William “signified privately” his “wish to dispense with the oaths of the clergy to government” and himself recommended the clause to the Lords (Sir John Dalrymple, Bart., Memoirs of Great Britain and Ireland [London, 1721], 1, 315); see also MacPherson, History, I, 584. The Lords Journals reports only that clauses were read and rejected (IV, 154, 156-59).

36. Grey, Debates, IX, 218-20.  Goodrick, a former army officer and diplomat, sat for Borobridge, Yorkshire.

446

said, but they could not. [40] “We cannot expect that the Dispensing Power should now revive to save those from whom it received its mortal wound,” agreed Henry Maurice. [41]

Lesser clergymen were to be deprived too.  Some among them had hopes of exemption.  Perhaps some thought that parliament might act.  In December a draft of a bill to enable their Majesties to dispense with the Test Act and to appoint any person, except a Catholic, whom they deemed fit to hold “any Office or Employment under them” without taking the sacrament was circulated among certain of the Lords. [42] But others were opposed, distrusting those who would bend the law in their own favor.  John Kettlewell, vicar of Coles-Hill, himself to be deprived, was one of these, reports his biographer. “At a time when a great many were for giving themselves Dispensations, out of a pretended Zeal of God’s Goodness, and were for breaking the Tables of his Law One against the Other, he [Kettlewell] strenuously opposed the Masqueraders.” [43] Those who hoped were to be disappointed. The king and queen did not ask and were not granted power to dispense. [44]

40. Samuel Weller Singer, ed., The Correspondence of Henry Hyde, Earl of Clarendon and of his Brother Laurence Hyde, Earl of Rochester, with the Diary of Lord Clarendon from 1687 to 1690, containing minute particulars of the events attending the Revolution: and the Diary of Lord Rochester during his Embassy to Poland in 1676 (London, 1828), II, 299.

41. [Henry Maurice, D.D.], A Letter to a Member of the House of Commons, Concerning the Bishops Lately in the Tower, and now under Suspension (London, 1689), p. 5.  Five of the seven bishops charged in 1688, including Canterbury and Ely, were among those who refused to take the new oaths; St. Asaph, also charged in 1688, was one of those who did.

42. A Draught of a Bill for an Act to enable their Majesties to Dispense with the Statue of 25 Car. 2 touching the Sacramental Test, and to Employ any of their Protestant Subjects in the Common Defence of Themselves, their Government, and their Kingdom ([London], [1689]), p. 1.  The same point had been broached in a rider attached to, and then detached from, the text of the bill for abrogating oaths in March; this may be only an expanded version of that rider, rewritten, printed and, apparently, circulated in December, as a draft of a new bill (Lords Journals, XIV, 158-59).

43. [Francis Lee], Memoirs of the Life of Mr. John Kettlewell (London, 1718), p. 221.  Sir James Montgomery reflected the same view.  Liberty of conscience Montgomery regarded as “desirable and necessary, a Good and Birth-right of Mankind,” but he would not have the dispensing power, “as much as fault now as ever” revived to achieve it (Great Britain’s Just Complaint For Her Late Measures, Present Sufferings, And the Future Miseries She is expos’d to [Oxford, 1692], pp. 16-17).

44. The draft version of the Articles of Limerick, signed by commissioners for King William in 1691, provided that Irish Catholics should “enjoy the same Privileges in the exercise of their Religion… as they did in the Reign of K. Charles the 2nd.”  In response to the English outcry against what seemed to some to be his taking “large and broad steps” to reassert the dispensing power, albeit [in Ireland not England, William revised the Articles, omitting the provision.  See [Robert Ferguson], The History of the Revolution (London, 1706), pp. 2, 25; also Montgomery, Britain’s Just Complaint, p. 28.]

HHC: [bracketed] reported on page 448 or original

447

By December, as Canterbury implied, the possibility was all but closed.  For early that month, parliament had at last moved to act on the succession bill, and with it, the question of dispensations.  In October, when the two houses had met again after the summer recess, the bill had been revived.  Again, the Commons pressed for abolition of the dispensing power.  Some among the Lords agreed.  “That dispensing power,” wrote the Earl of Danby (later Duke of Leeds), “that like a State Opium, casts all Laws asleep, and is an Engine of Publick Mischief, is no Prerogative belonging to the Crown of England, but a Vice that does not belong to it.” [45] But, as in April, May, and July, the majority of the house hesitated.  In November they still sought to save something of the prerogative.  On the fourteenth, they ordered the judges to “prepare a Bill for regulating Non Obstantes, with all convenient speed.” [46]

On 21 November the judges were reported ready; the Lords moved to hear from them “what is practicable in this case.”  Justice Dolben made the report; he was not at all encouraging.  The judges had drawn up a bill as ordered, Dolben said, “but when we had done we fell into a debate of the Non Obstante, and we found it of marvellous difficulty.”  This was not what the Lords had hoped to hear.  The next day the judges were asked again, in “what cases it is absolutely necessary for the Crown to dispense, or In what case the king may dispense with an Act, or whether he can dispense in no case.” Might it not be prejudicial to the subject if the king had no power to dispense at all?  What did the law say?  But the judges could not answer clearly.  The precedents could be cited, as they had been in Thomas vs. Sorrell, Godden vs. Hales and the Case of the Seven Bishops, but this did not answer the Lords’ questions.  “I can say no more,” said Justice Dolben.  “It will be very difficult.” [47]

Time required that a decision be made; the Commons and the country awaited the succession bill.  Still the Lords hesitated.  Again they ordered the judges to draw up a bill for dispensing “in such Cases wherein they find it necessary,” and, they now added, “for the abrogating such laws as have been usually dispensed with, and

45. Osborne, Thoughts, p. 17.

46. Lords Journals, XIV, 332, 341-46, 348; Lords MSS 1689-90, p. 348.

47. Lords MSS 1689-90, pp. 348-49; Lords Journals, XIV, 349.

448

are useless.” [48] Then they voted on the Commons’ clause to abolish the dispensing power and this time agreed, with two reservations, to accept it.  Non obstantes were to be “void and of noe effect” as the Commons insisted except, as the Lords added, “in such Cases as Shall be specifically provided for by one or more Bill or Bills to be passed dureing this present Session of Parliament.”  Also, all grants non obstante made before 23 October 1689, the date the session opened, were held good and in effect.  On 16 December the bill became law. [49]

This was not compromise but capitulation; the Lords gave in.  Despite the hopes of the nonjurors, and perhaps of some of the Lords themselves, no bill regarding the dispensing power was introduced. [50] Probably in any case none could have passed the Commons.  The session closed; the non obstante was abolished.

Why had the Lords hesitated so long?  Had some among them thought to restore the powers James had enjoyed?  Was there a lack of confidence in the aims of the Revolution?  Surely not, must be the answer to both questions.  Englishmen knew the danger of the dispensing power.  King William might be trusted, but the future could not; security against it was required. [51] Still, as the Lords said,

48. Lords Journals, XIV, 326, also 394, 402, 418; Lords MSS 1689-90, p. 361, lists statutes recommended for repeal.

49. 1 W. & M. Session 2, c. 2.

50. The possibility that such a bill might be introduced was, presumably, what led some of the clergy to yet hope for dispensations in late December.

51. After 1689 James II, in exile, no longer pressed the point.  His April 1693 Declaration, prepared in a vain attempt to rally support among his former subjects prior, he hoped, to restoration, spoke only of “parliamentary settlement.”  “I do promise to govern according to law,” he wrote to certain lords six months later.  See James MacPherson, Original Papers; Containing the Secret History of Great Britain, from the Restoration to the Accession of the House of Hannover (London, 1775), I, 425-35, 445; “A Light to the Blind,” Appendix iii [Observations on the government of James II], in Manuscripts of the Right Honorable the Earl of Fingall, Killeen Castle, Ireland, Historical Manuscripts Commission Report X, Appendix, Pt. V, p. 116.  Still, in the minds of some Englishmen, the dispensing power was not dead.  Wrote a Jacobite poet hopefully in 1693:

And as for the dispensing power

(Of Prince’s Crowns, the sweetest flower)

That parliament shall so explain it,

As we in peace shall still maintain it.

(The True and Genuine Explanation of one K. James’s Declaration, printed in William Oldys and Thomas Park, eds. The Harleian Miscellany: A Collection of Scarce, Curious, and Entertaining Pamphlets and Tracts as well in Manuscript as Print [London, 1808-13], II, 229).  See too George Dawson, Origo Legum: or a Treatise of the Origin of Laws; and Their Obliging Power: as also of Their Great Variety: and Why Some Laws are Immutable, and Some Not; but May Suffer Change, or Cease to be, or be Suspended or Abrogated (London, published in [1694 though possibly written earlier), which not only treats the dispensing power as if it still existed (Ch. vi), but also argues for it as necessary to the “publique weal.”]

HHC: [bracketed] reported on page 450 or original

449

the non obstante had its uses.  What of grants, judges, sheriffs, pardons, and any number of other things should the king’s power to dispense be abolished?  True, agreed most Englishmen.  But defense was, really, hopeless.  There was no way the non obstante could be saved.  For if the king retained a power to dispense in some cases, then he (or his successors) might claim a power to dispense in all.  No statute, including even the Act of Succession itself, and thus not even the Revolution, would be safe.

Once the Revolution had begun, it had to be carried to its conclusion.  To Thomas Somerville, looking back at events from the safe distance of 1792, this was plain. “If a king be vested with a discretionary power of dispensing with laws, what remains deserving of the name of a free constitution, or of a settled government?” [52] But in 1689, the point was by no means clear.  It took some time for the Lords to realize what had happened.

It was, really, a question of responsibility.  If the Revolution marked the triumph of law, it marked too the end of the dispensing power.  Non obstante had been necessary because statutes were outdated, ill-drawn, ill-advised, or in the Lords’ own word, useless.  But it was no longer possible to trust the king to remedy the defects.  Convenient, expedient, the non obstante might be, but dangerous too, the Lords knew.  Parliament itself must assume responsibility for the laws it made.  Defective laws must be redrawn, useless ones repealed.  Parliament met often now; it could be done, and was.  Through the 1690s old laws were brought up to date and, when necessary, rewritten. [53] There could be no other way.  The Commons understood this and so, in the end, did the Lords.

University of Illinois, Chicago Circle

52. Thomas Somerville, The History of Political Transactions, and of Parties, from the Restoration of King Charles the Second, to the Death of King William (London, 1792), p. 185.

53. The old Statute of Mortmain, for one example, was replaced in 1696 by An Act for the Encouragement of Charitable Gifts and Dispositions (7 & 8 Will. 3 c. 37).  For another, Henry IV’s statute against “multiplying Gold and Silver” was repealed, leaving alchemists free to attempt the transmutation of metals without the king’s permission (1 W. & M. c. 30).  The question of pardons non obstante was, apparently settled in the courts, with Justice Holt’s argument that statute limitations upon the power of pardon were illegal, the non obstante therefore unnecessary.  See Henry Hallam, The Constitutional History of England From the Accession of Henry VII to the Death of George II (New York, 1882), II, 318.

450