The Complexity of Legal Change

History is full of examples of the complexities of legislation and law. While everyone has some idea of what is just, our own interests and passions tend to get in the way. It is often difficult to procure productive change without overstepping the legitimate powers of government and thereby setting precedents useful for destructive change later on. It is also difficult to protect some real or imagined rights or interests without infringing other real or imagined rights. These difficulties are among the reasons “conservatives” favor relative stability in law.

One example from the reign of the English King James II is seen in the circumstances surrounding the Declaration of Indulgence and the trial of the Seven Bishops.

One of the great injustices of England has been the persecution and discrimination against religious minorities that occurred from the middle ages up to modern times. The legal impediments to dissenters from the national church were only gradually eliminated. In part, the problem stemmed not from malice, but from the mere existence of a national established church and from the good intentions to maintain unity and avoid seditious and destructive opinions as much as possible for the good of the people and the commonwealth.

But, from our perspective with the passage of time, we can see how the best intentions often worked a mischief. The same England that gave us Magna Charta, the King James Bible, and the Westminster Confession also burnt the bones of Wycliffe, burned Cranmer at the stake, imprisoned John Bunyan, and refused to let Baptists hold political office for an unconscionable amount of time. When we limit freedom for the sake of unity or purity of doctrine, it is an inevitability, given fallen human nature, that we will sometimes be mistaken in what is correct or true, that we will make mistakes even when we do know what is true in the abstract, and that the enemies of truth will at some point gain enough power to use the same rules against those who believe the truth – or so the experience of history seems to teach us.

King James II tried to change the situation in the late 1600s by issuing a decree known as the Declaration of Indulgence, and a second decree known as the Second Declaration of Indulgence. The first Declaration of Indulgence was issued in 1687, the third year of James II reign. In the declaration James II says his intent is to make the people of England happy by “granting to them the free exercise of their religion.” James II sensibly writes “conscience ought not to be constrained nor people forced in matters of religion.” James II observed truthfully that all the efforts of the last four monarchs to promote a single unified religious opinion in England had failed, and all such efforts were doomed to failure. Building on these principles, James II says he will protect the established church, but that all penal laws punishing people for failure to adhere to and participate in the established church are now suspended. James goes on to declare that all religious groups may have their own meetings (which had not been allowed). But, as he is still worried about sedition, the non-Church of England groups must meet openly, allow visitors, disclose their regular meeting sites to local government representatives, and avoid preaching any sort of treason. James II went even further to eliminate all existing oaths of religious orthodoxy as tests for holding office in England. To crown all this off, James II pardoned everyone who had been accused or punished under the laws eliminated by the Indulgence.

In the Second Declaration of Indulgence, issued in 1688, James II essentially said, though not in these words, “despite what you may have heard about the Declaration of Indulgence, I really meant it and it is for your own good – freedom of conscience is good for everybody.”

You would think that these declarations would have put James II down in the history books as a great wise king, far ahead of his time. But they did not. James II got a bad reputation with the majority that has lasted down to this day. Why? Well, a lot of other things entered into it: James abused the court system by trying to intimidate judges, he wanted to become an absolute monarch, he had a Roman Catholic wife and people thought he was trying to bring back absolutist Roman Catholic rule over England despite all the talk about religious liberty . . . oh, and he conspired to have France invade England to back him up in his fight with Parliament. Many members of Parliament thought that the Declaration of Indulgence was beyond James' proper authority as King. He could not do something like this – only Parliament could make such a radical change in the laws. Indeed, the Declarations claimed to unravel many Acts of Parliament, and spreading the Declaration of Indulgence itself was seen by many as a violation of a law laid down in the time of Elizabeth that involved not only possible legal penalties, but carried an anathema – a sort of theological curse – against any churchman who so violated it. And, Parliament suspected James did not really believe in freedom of conscience for the long run – he just wanted it long enough to get his pro-Roman Catholic friends into enough government offices and positions of power to seize control of the government and return England by force to the Romanist fold.

In the context of this fight, along came the Case of the Seven Bishops. Seven of the rulers of England’s established Anglican Church, including the Archbishop of Canterbury, objected to the Declarations of Indulgence. The King issued an order that the Declaration of Indulgence be read in every church and distributed by clergy to their people. The seven bishops petitioned the King refusing to read the Declaration in church or to distribute it. The King had the Seven Bishops prosecuted for libeling him with their statements in the petition for relief from the law.
Do you see the tremendous irony? In order to further a statement supposedly meant to establish religious conscience the King brought criminal cases for libel against five clerics over what they did not do in church. As if that were not enough, he was punishing them for asking him for help to avoid violating the law and coming under the threat of prosecution from Parliament and a curse from the church. On top of this, the King’s authority in the whole matter was suspect. The King was violating freedom of conscience and religion in the name of freedom of conscience and religion – and was doing so in violation of England’s unwritten constitution. If the King lost, it was a setback for religious liberty. But if the King won it helped establish that the King had the power to act as a tyrant – a precedent that might ultimately result in the King talking away religious liberty.

The King lost. The jury came in with a verdict on not guilty. The same year Parliament drove James from the throne and replaced him with monarchs with unimpeachable Protestant Christian credentials. Religious liberty would be won, but on a slower time table. Absolute monarchy, the threat of tyranny, and the specter of a new Roman Catholic established church were banished.

I hope this very brief description serves to illuminate the problem of legal complexity. Today, the problems of the complex interactions of rights, powers, and laws are no less byzantine. There are many today who seek radical changes in society. They wish us to think differently, feel differently, eat differently, make less dust, ignore moral rules handed down by God and endorsed by every major culture for centuries, educate children differently, and ultimately – they hope – change human nature itself. They seek to do all this through laws and regulations of questionable legal pedigree and authority. And they often are heedless of the sweeping chaos they will unleash. They are willing to take away rights given by God to uphold new rights given by man. At least the letter of James II’s Declarations bore on its face a noble sentiment. The same cannot be said of those who seek to replace the hard won freedom of religion with freedom from religion, and the liberty to choose among goods with a petty tyranny over plows and breakfast tables. The new progressives too often seek James II’s claimed power without James II’s claimed excuse.