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 Charles tried another way to gain his purpose. Both he and his brother desired to establish Catholicism for its own sake. They were not converts, but they intended to be before they died. The difference was that James was ready to make some sacrifice for his religion, Charles was not. They both regarded it as the only means of putting the crown above the law. This could be done more safely by claiming the right to dispense from penalties and disabilities imposed by parliament. The idea, entertained as early as 1662, ripened ten years later, when the Penal Laws, as well as the intolerant legislation of Clarendon against the Puritans, which had been considered the safeguard of monarchy, were declared inoperative. The ministers, including Shaftesbury, expected to obtain the support of Nonconformists. This calculation proved delusive. The Dissenters, on an assurance that they would be relieved by parliament if they resisted the offers of the king, refused to accept them. The object of his declaration was too apparent, and was indeed too openly avowed. Just then the Duke of York became a Catholic, and although the fact was not made public, it was suspected. Ministers advised Charles to maintain his offer of indulgence and his claim to the dispensing power. Charles gave way and accepted his defeat. He gave way because Lewis advised it, and promised him more French regiments than had been stipulated for, as soon as he was again at peace with the Dutch.

The House of Commons followed up its victory by passing the Test Act, excluding Catholics from office. The Duke of York resigned his post as Lord High Admiral. It was, he said, the beginning of the scheme for depriving him of the succession to the throne. In November 1673 Shaftesbury, who had promoted the Declaration of Indulgence, was dismissed from office and went into opposition, for the purposes of which Lewis sent him £10,000. He learnt from Arlington the main particulars of the Treaty of Dover, and in the following month of January the secret was substantially made public in a pamphlet, which is reprinted in the State Tracts.