HC Deb 15 February 1821 vol 4 cc689-715
Lord Archibald Hamilton

said, that in rising to make the motion of which he had given notice, for a copy of the order in council, directed to the General Assembly of the Church of Scotland, relative to the erasure of the Queen's name from the Liturgy, and also for the copy of a letter relating to the arrest of a clergyman in Scotland, he was sorry to find that there was every probability that a motion which he originally thought would be conceded was now to be opposed. This anticipation he formed from the extraordinary declaration of the noble lord opposite that this motion must be considered as a disgrace to the order-book of that House. He was anxious to give the noble lord an opportunity of disclaiming that expression, or of stating the grounds upon which he had used it. Knowing the influence of the noble lord upon the majority of that House, he was most anxious, before that influence was put into complete activity, to state the grounds which he deemed justificatory for submitting this question to the consideration of the House. It was a matter of general notoriety, that when the alteration in the form of the Li- turgy took place, after the death of the late king, an Order in Council, precisely similar to that issued in England, was sent down to the General Assembly of the Church of Scotland. It was forgotten by the parties who had sent it, that the religion established in Scotland was wholly independent of the Crown, wholly independent of the Privy Council, and indeed wholly independent of any control, except that of the General Assembly of Scotland. Now, this order in council purported to be one to which obedience was lawfully due. It was issued on the same day with the English order in council by virtue of which the Queen's name was omitted in the Liturgy: it was drawn up in exactly the same terms, and signed by the same names, the archbishop of Canterbury, &c. &c. It had, however, received a different fate from that issued in England. And he meant to state, and without using a sarcasm, that due and proper obedience had been paid to the order sent to Scotland, by not obeying it at all. It was very singular that any authority should take upon itself to issue an order to a power which neither could be asked to obey it, nor which would obey it. Such an order could not be thought of without derision. There were, so far as he could learn, two grounds upon which obedience was required to this order in council. The order itself recited two acts of parliament, the 10th of Anne, and the 32nd of Geo. 3rd, but omitted that which they ought also to have stated—the chapters of the acts to which they referred. He had, however, by his own investigation, aided by that of some friends, at length discovered the chapters, or rather believed he had discovered them—for he could only at present upon that point speak conjecturally, the order omitting all reference to the particular parts of the acts which were relied upon. He must say, at the outset, that he believed the orders in council were issued upon acts which conferred no authorrity at all in the case. He should have thought that in the case of Scotland, the moment the subject was reconsidered, the parties issuing the order would have come forward and recalled it, with an acknowledgment that it had gone forth through inadvertence. He expected they would have either done that, or acknowledged that, although sent, they had no intention it should have been obeyed. In his opinion, the order was either impotent or illegal;—impotent, if they knew it would not be obeyed—illegal, if it were to be obeyed without any proper authority. If it intended any thing, then he must pronounce it illegal; and if it could lead to nothing, he must call it impotent. So that, in either case, he must beg leave to say, that such an order reflected far greater disgrace upon the book of the Privy Council which issued it, than his motion could possibly do upon the order-book of that House, according to the opinion of the noble lord opposite. The first case in Scotland to which he meant to call the attention of the House, as following the arrival of the order in council in that part of the empire, was that of the county sheriff acting at the sessions of Kirkcudbright: and here he particularly begged their attention to the parties who were called upon to give efficacy to the order. At the sessions to which he alluded, there met, the sheriff, his son, a colonel of the yeomanry, and the clergyman. At that meeting, the sheriff, his son, and the colonel, agreed, that in compliance with the order in council, they should prevent the Queen from being prayed for in the Liturgy. The clergyman, however, dissented from their opinion, and refused to omit the prayer for her majesty's name. The matter was then referred to the Presbytery, who approved of the conduct of the clergyman, disapproved of the order in council, ordered the minute of the sheriff's approval to be erased, and the parties to appear before them for reprimand, and the whole decision to be read in the church. Surely this was throwing great obloquy upon the order in council, and which, if that order were legal, must be attended with some penalty. The second case to which he wished to call the attention of the House was that of another sheriff of a Scotch county, who was also a colonel of yeomanry. The colonel (Gordon) asked the clergyman of his district whether he was a party to any agreement not to omit the prayer for the Queen in the church service. The clergyman replied very properly that he would act in obedience to the law of the land. The same clergyman, at the end of a sermon which he preached—one which was, as the learned lord opposite must admit, remarkable for nothing but the propriety of its language and sentiments—at the end of that sermon the clergyman, after praying for the king, said "and bless likewise the Queen." For that offence the clergyman was on the same day (Sunday) put under arrest. [Hear, hear.] He begged to be understood as not meaning that he was put under actual personal restraint; but merely that he was desired to consider himself as arrested, and the arrest was continued for some time. Would the noble lord opposite contend that such an act as this was not matter worthy of the consideration of that House? For his own part he should only say, that nothing should induce him to suffer such an attack upon the freedom of the church of Scotland to pass unnoticed; no political bias should operate to deter him from bringing the matter before the House. He made this declaration with perfect temper, yet in a firm tone, although he should not suffer himself to press the matter with warmth, notwithstanding the unprovoked observation of the noble lord opposite respecting his notice. It might perhaps be said, that there were precedents for the course pursued in Scotland. To this he should reply, that the precedents, if invariably wrong, ought to have little influence upon the judgment of that House. And he must say, that if ever a precedent occurred which ought to have been closely scrutinized, it was this, which obviously tended to augment discontent at a moment of very general irritation and excitement. The haste with which both the English and Scotch orders were issued was very evident: nothing could show the promptitude, haste, and inadvertency of the proceeding, more than that when ministers were called upon to explain their conduct, they were unable, at the moment, to point out the precise parts of the acts of parliament upon which they were prepared to justify their act. He would now read the document, which was really of a most remarkable character: he could hardly assert positively that this was a copy of the order in council, but it had been published in a Scotch paper as such, accompanied by the following letter, signed "James Buller." "You will herewith receive a copy of an order in council for making the requisite alterations in the prayers for the royal family, as far as regards the Church of Scotland, and you will be pleased to see due obedience paid to it." Here, let it be observed, that alterations were ordered to be made in the prayers of a church which had no prayers to alter. Then followed the order itself, addressed to the moderator of the General Assembly, over which the privy council had no more authority than they had over the city of Constantinople. The noble lord here read the order, and observed, that the injunction "to pray in express words for his majesty George 4th, and all the royal family," was marked by inverted commas. There was only one thing wanting to make this order the most complete piece of absurdity that he had ever met with, and that was, a charge to the bishops to carry the order into execution, there being no such personages in the church of Scotland as bishops. The order, the House would have perceived, referred to the 10th of Anne, which enjoined the clergy of Scotland to pray for her majesty and the princess Sophia; but it ought to be borne in mind, that there was in queen Anne's time some reason for passing such an act, the pretender being then prayed for by name in many of the churches. That personage was in point of fact often prayed for under the name of the king. The frequency of the practice had given rise to the well known distich— Who the pretender is and who the king, God bless us all, is quite another thing. It was on this account that an act then passed to pray for queen Anne and the princess Sophia, in direct terms. If that act was now in force at all, it required the Scotch clergy to pray for queen Anne and the princess Sophia, and for nobody else, as, unlike the English act of parliament, it gave no power to alter the names from time to time. The other act recited in the order was the 32nd of George 3rd, and it was absolutely ridiculous to see it quoted, for no part of it had any more application to the present order than a chapter in the Koran. The 32d of George 3rd, related solely to the Episcopalians of Scotland, and it was therefore preposterous to quote it in support of such an order as this, which was directed to the established clergy of that country. It might perhaps, be shown that orders in council had formerly been addressed to the clergy of Scotland; but of this he was sure—that whenever such an order had produced any effect on the church, it had only been through the recommendation of the general assembly, and not from any force in the edict itself; and this in fact, had been the case on the marriage of the present king. All he wished to learn was, on what ground the learned lord defended the proceedings which had taken place in consequence of this order. The two cases he had stated were those of the Kirk session and the arrest: the sheriff was at the bottom of both proceedings, and apparently all was done under official sanction. The case of arrest was one which particularly called for the sympathy of the House; for the clergyman on whom that outrage had been committed was an individual of the utmost respectability of character who, so far from allowing his zeal in political matters to carry him too far, was one of the most moderate and temperate members in all the church. But, was a clergyman to be put under arrest, because he refused to pray, as he expressed it himself, "by word of command?" Let the House only reflect on the situation in which the church of Scotland was placed by this order—a situation which left the clergy no alternative, but either to disregard an order of the king in council, or to forfeit the respect of a great portion of their parishioners.—The other motion which he was about to submit was for the production of the letter addressed by lord Sidmouth to colonel Gordon, on the subject of this clergyman's arrest. He had omitted to mention that, in consequence of that arrest, a correspondence had been commenced with lord Sidmouth, which had afterwards been transferred to the lord Advocate of Scotland; and as his object was, to go to the fountain head, he had preferred calling for the letter of the former. That letter must either justify or it must condemn the arrest. If it justified it, it did great injustice to the clergyman; and if it condemned the proceeding, it necessarily implied the condemnation of the order in council, in vindication of which the arrest had been made. There were several other points connected with the subject which he had not mentioned, because he was reluctant to trespass on the time of the House; but he appealed to the House whether he had not said enough to show, that his motion was not a disgrace to the order-book. Such a charge was unjust in itself, and was rendered still more so by being made at a time when it was not in his power to repel it. The noble lord concluded by moving, "that there be laid before this House, A copy of the order in council, of 12th February, 1820, as transmitted to the moderator of the General Assembly of the church of Scotland. 2. A copy of any letter or letters which may have been written by lord Sidmouth to colonel Gordon, of Kirkcudbright Yeomanry Cavalry, or to the lord lieutenant of the county, during the year 1820, relative to placing the Rev. William Gillespie, officiating chaplain of said corps under military arrest, by the said colonel Gordon."

Lord Glenorchy

considered the order in council to be a breach of the fundamental principle of the church of Scotland, which admitted of the intervention of no superior authority with regard either to its discipline, the internal regulation of its affairs, or the topics to be alluded to in its public worship. This principle, as the history of Scotland showed, was long contended for both by word and act, and it had been established and ratified by the blood of persons who had thought it an object worthy to be fought for. It had been secured to Scotland at the union of the two Crowns, by several acts of parliament, and it was so fully acknowledged, that he was surprised this order in council had ever been issued. The act of queen Anne was passed under particular circumstances; and, as it was intended for the security of the succession, those who were interested in the privileges of the church of Scotland thought it unnecessary to interfere. It was not, however, on that account to be regarded as a precedent to be acted upon on future occasions. Although this order might not be dangerous in itself, yet as its object embraced subjects of religion, and a matter which had excited the attention of the whole country, it assumed an importance which it would not otherwise have possessed. The people in Scotland had ever been considered a highly religious people, and were well qualified by their education to weigh the motives of human action. He was convinced that they had well weighed the motives from which this order had emanated, and he feared they had been unable to find any good motive in which it could have originated. Was it sent down to promote the happiness of the country?—to promote the dignity and honour of the Crown?—to promote purity of religion and sanctity of morals? He had endeavoured to weigh it by these considerations, but had been unable to perceive how it could possibly have a tendency to promote any of these objects. He could find no other motive for it than a desire to gratify an uncharitable and vindictive feeling towards an injured individual.

The Lord Advocate

was almost persuaded that, notwithstanding what had been said by the noble mover, it would not be necessary for him to trespass long on the attention of the House. The noble lord professed to have made this motion for the purpose of raising the question on what grounds this order was justified, and that question he was perfectly prepared to meet. He thought the motion did the noble lord no discredit: it was perfectly consistent with the uniformly praiseworthy conduct of the noble lord, in watching over the interests of Scotland, and bringing under the notice of the House every subject connected with that country which might require investigation. He was sure, therefore, that the noble mover must have misunderstood the remarks in which he supposed his noble friend to have called the present motion a disgrace to the order-book. He had been lately in the habit of paying pretty close attention to the discussions in that House, and he certainly was not aware that any such statement had been made by the noble lord near him. Before he proceeded to answer the question involved in the present motion, he begged to assure both the noble lords opposite that he was by no means disposed to undervalue the rights and independence of the church of Scotland. It might perhaps be enough for him to say that ministers, in advising this order in council, had acted on the uniform practice of upwards of a hundred years. But he did not mean to rest the justification of the measure on usage: he would meet the argument fairly, and would say, that the issuing of this order was a legal exercise of power—that the king in council had in this case exercised a right founded on the law of the land. He was glad that it was not necessary for him to enter into the general question of the propriety of omitting the Queen's name in the prayers of the church; and he should accordingly confine himself to the proper question before the House; namely.—whether the Privy Council had a right to issue this order to the General Assembly of Scotland. That the right existed he contended, and he founded it on the act of the 10th of Anne, chap. 7,sec 10. By this enactment he con- ceived that the order in council was fully warranted. He did not say this on his own authority, but on such authority as, he believed, would be convincing to the whole House—he meant the decisions of the supreme court in Scotland, by which individuals had been punished for refusing to pray, not for queen Anne or the princess Sophia, but for George I. If he understood the act, it said that every clergyman was to pray for queen Anne and the electress Sophia: and the only question was, whether the enactment in that clause was intended to be confined to queen Anne and the electress Sophia, or to extend to every future sovereign and heir-apparent. He contended for the latter of these two interpretations; and in support of that construction he would refer to the proceedings which took place soon after the act was passed. The princess Sophia died three months before queen Anne; and if the act had been limited to them individually, he affirmed, that no other heir apparent could have been prayed for without the authority of a new act of parliament; but if it should appear that an order of council had been sent down to the church of Scotland directing them to pray for the next heir apparent, that would be proof that the act extended to every future sovereign and heir apparent. It happened, however, to be the case, that an order in council, dated the 21st of June, 1714, was sent down, ordering every minister to pray for queen Anne and the elector of Brunswick; and a few months after, on the death of Anne and the succession of George I, a similar order in council was sent to Scotland, enjoining the clergy to pray for his majesty George I. The origin of the act of queen Anne was this; the clergy in Scotland had been in the habit of praying for the king, but not by name: and as it was well understood that many of them meant the pretender, this act was introduced for the purpose of tying them down, in express terms, to the name of the Sovereign. It had been held, that that act of queen Anne applied to king George or the existing monarch, notwithstanding the limitation of its terms; and persons were indicted before the supreme court of Justiciary in Scotland, for that offence. By the various decisions of that court, it was held that the statute of Anne was "not limited to queen Anne alone, but was meant to apply to the reigning sovereign of the day." Of the authorities to which he had occasion to refer, some were within the reach of every person who heard him; but two of them he should cite from the State Trials of which he would give both page and place: the others he had extracted from the records of the justiciary court of Scotland; and he trusted the House would give him credit for the fidelity with which he had transcribed them. That the construction for which he contended was correct, the following cases would show—In January, 1715, there was the case of Robert Anstruther;—and on the 30th of January, in the same year, that of George Hay; in both of these, indictments, laid under the act of queen Anne, were found in the court of justiciary. But, although they were found relevant in the phraseology of the Scottish law, they were not followed up by any degree of punishment against the parties; and therefore, as there was no verdict found by a jury, he would content himself with thus briefly noticing this case, and passing to another. The next case was that of William Guthrie, in July, 1715; who was indicted for "the frequently omitting to pray for his said sacred majesty king George, the prince of Wales, the princess of Wales, and all the royal Family, during the celebration of public worship." as in express terms directed by act of parliament. This was the charge expressly laid against him:—"That the said Guthrie did omit to pray for king George, when public worship was performed," and so on; "and that the jury, for such offence, do subject him to the penalty of 20l. sterling, the penalty prescribed by the act." In Howell's State Trials, vol. xvii, page 782, he met with the case of George Robertson, who was indicted under the same statute, for having refused to pray for the king, George I. This last case went to a second prosecution, on informations laid by both parties. The defence set up was, that the party could not be indicted under the aforesaid act of parliament, by reason that his majesty king George, and the then prince of Wales, were not, by the act, desired to be prayed for. And the panel pleaded, that he prayed for all the royal family, which was all that the act required after the demise of the queen, and also of the electress Sophia.—He hoped the House would carry this in its mind, that the in- junction which was here called in question was, that the clergy of Scotland should pray for all the royal family. The case of Daniel Taylor occurred in 1716; he, along with twenty other clergymen, was indicted for the same offence as in the preceding instances. The report would be found in Howell's State Trials, vol. xviii, page 1363; and there it was stated thus:—"The court finds that the panel, and the said other members of the presbytery, have omitted, at divers times, in express words to pray for his majesty king George, and the prince of Wales; and each of them relevant to infer the pain of 20l. sterling." This indictment certainly contained a separate statement of similar offences which were therein proposed to be proved; it being the custom of those courts not to leave any other questions arising out of one case to be settled afterwards. This case going on to proof, the jury found the panel guilty, and that they had become liable to a penalty of 20l. each, one half to go to the informer, the other to the poor of the parish. In March, 1717, no less than twenty-two Episcopalian clergymen were indicted; and this might be material to notice; for the act expressly directed that its provisions should be complied with, as well by the Episcopalian clergy as those of the kirk of Scotland. These clergymen were indicted at Edinburgh for not praying for the king. Their offence was aggravated by having been previously convicted on a similar charge; and their second conviction, by the act, rendered them liable to be deprived or suspended. They were found guilty, and a sentence of deprivation accordingly was issued against them. About the same time George Fairlie, James M'Lachlan, and another, on a like indictment, were also found guilty. This was on the 20th of January, 1718, when J. Small was indicted, the charge being, in addition to the one of "not having prayed for king George," for that he had prayed for the royal family, saving king George. He was convicted with the others; and they were all of them found guilty and severally fined in the same penalty of 20l. Now, whether the House should think these decisions right or wrong—such as they were, they were the decisions of the supreme criminal court of Scotland, and found under circumstances in which if the court had entertained any doubts upon their cases, those doubts would have availed the panels. If the judge or the jury, in their consciences, had thought that the parties might justly be acquitted, there could be no question but that they would have pronounced them not guilty.—This, then, being found by decisions of those courts, let them now see what had followed thereupon. He had already stated what took place in the reign of queen Anne, upon the death of the electress Sophia. Then followed the reign of George 1st and he had also said that on that occasion a regular order issued for the regulation of this subject as regarded Scotland. From that time, down to the present day, with only two solitary and in some measure, unimportant exceptions, when the prince royal and the prince of Wales were directed to be prayed for; but, otherwise, from the year 1714 down to this moment, whenever any alterations of the Liturgy of the church of England took place, by virtue of an order of the king in council, a like order had been sent down to the moderator of the church of Scotland, directing him to take the necessary measures for adopting a similar step there. The proceeding of the present government then, was one which had been universally practised for a long period of time by their predecessors; and it was complied with by the church of Scotland in these cases, as an act of due respect and consideration for the authorities of England. The following order, that which had been so directed to the moderator, was thus issued in complience with established custom; and he was sure that the House would go along with him in thinking, that nothing of disrespect was intended to be offered to the church of Scotland, or any other of those encroachments upon it which had been insinuated. He would now read the order of council directed to Scotland. It was dated the 20th February, 1820, "present, his majesty in council. In pursuance of an Act passed in the 10th year of the reign of queen Anne, and also of an Act passed in the 32nd year of his late majesty." Here he would remark, that he agreed with the noble lord opposite, that the latter statute was applicable only to the episcopalian clergy. For though, by it, they were required to pray in exactly the same words as the clergy of England, it might well be doubted whether it would apply to the presbytery of Scotland. Yet, even in this instance, he was prepared to say, that nothing but precedent had been gone upon by his majesty's government. The order went on:—"Wherein provision is made for that part of the royal territories in England, called Scotland, it is hereby ordered by his majesty in council that henceforth every minister, &c. in kirk or assembly, shall pray for his sacred majesty king George 4th and all the royal family; of which all persons are required to take notice, and to govern themselves accordingly." He could state, having seen the original document within the last few hours, that it contained nothing else. It was, in fact, a general order, directing prayers to be made for his sacred majesty king George 4th, and "all" the royal family.—After the statement he had now made, he thought that government, in issuing such an order, were completely justified, and that the House would be satisfied on this part of the case. Let him now observe, that the order was, to pray for the king; it did not bear in what terms he was to be prayed for; and he could readily believe, that if the minister chose to say "God bless king George," or whatever other form he might choose to adopt so long as it was a bona fide prayer for the king, that was a sufficient compliance with the act. But in England, the prescribed form was "his most sacred majesty." He would appeal to any Scotchman in that House, whether he ever heard, however, in the church of Scotland such a phrase as "his sacred majesty." No such thing was ever recognised in its service; but here the church was directed to pray for the king nominatim. He was ready to admit that, though the order thus required that the clergy should pray for king George and all the royal family, they were not excluded from praying for any particular branch of the royal family. And he was also free to confess, that if a clergyman might think proper to pray for the Queen also, nominatim, he did not see any thing illegal in it. But when it was asserted that such a prayer for the Queen was the universal custom of the church of Scotland, he stoutly and manfully denied it. When it was said that nine-tenths of the Scottish clergy so prayed, he would venture to observe, that he believed the ratio to be just the reverse. Certainly, individuals of that respectable profession were entitled to entertain in private what political opinions they pleased; and even to express them in public, provided they neither exceeded the moderation so becoming their character, nor interfered in such a way as to affect the discharge of their sacred duties or the peace and good-will which they were bound to uphold among all classes: but the clergyman who ventured to go beyond this point, and to obtrude such opinions, at a time when the public were divided upon them already, was only introducing among his neighbours the seeds of discord. He would venture to say, that by the fair construction of the acts which he had quoted, the clergyman was entitled to pray for the king and royal family in what terms he chose. If he pleased, he might pray for the whole family, for every noble family, in the vicinity, or for every man in the country by name, provided his congregation would stop and listen to him. But, if he should fail to pray for the king, by name, he would certainly be liable to the penalty of the act of queen Anne; and such clergyman so refusing, he should feel it his duty (if a case of the kind ever occurred), as public prosecutor of Scotland, to indict immediately; and no doubt had he, but that a jury of Scotchmen would find the individual guilty of a penal offence. Were ministers, then, to be blamed for acting upon the known decisions of courts of law? Still less, surely, were they to be accused of misconduct in following a uniform course of precedents, from 1715, down to the present day, wherein orders had invariably been so issued from England to Scotland—As to what the noble lord had said relative to a letter transmitted from the secretary of state, that was quite a different question, and one into which he was not bound to enter. The two subjects of the motion had no sort of connexion. They related to different circumstances, occurring at differing times. The facts of that case, had been very fairly stated by the noble lord. In the kirk session, it appeared that two members voted against the opinion of the third, "that during the vacancy, it was highly inexpedient that the clergy should pray for the Queen." He was not going to defend this proceeding; on the contrary, he thought it unwise, foolish, and illegal. But what happened afterwards? The presbytery, on receiving intelligence of the matter, saw at once the illegality of the act, and not only ordered that proceeding of the kirk session to be erased from the books, but cited the individuals who had originated it to appear before them and answer for their conduct. The parties did appear before the presbytery, acknowledged the irregulariy they had committed, and expressed their regret: the presbytery nut an end to the whole proceeding, declaring themselves satisfied with the acknowledgment that had been so made. He could not therefore help saying, that after every thing which had taken place upon this business, it was now too late to bring the matter forward in parliament. Then came another circumstance, by no means connected with the other. The proceedings against the chaplain had nothing to do with the proceeding in the kirk session. In this case, the colonel of the yeomanry corps of Kirkcudbright made application to a gentleman, who was the chaplain of that corps, in order to know whether he should think it his duty to pray for the Queen by name or not? The chaplain, for reasons best known to himself, did not think proper to answer that application; which he could not help regretting, as it might have prevented what had followed. In every thing which had been said as to the character of this gentleman, he did most heartily concur; for he believed him to be a good and honourable man, and he knew him to be a true and loyal subject. At the same time, he regretted that he had not given an answer, declaring whether he did or did not mean to pray for the Queen nominatim. At that time, her majesty's case was the subject of general agitation throughout all Scotland: and he could certainly approve of the laudable anxiety of a commander of yeomanry cavalry, that at the next meeting of the corps there should be no discussions of political topics. In justification of the colonel, he, for one, could not blame him very deeply for his extreme anxiety on such a subject. Upon the return of the chaplain, that officer communicated to him that he must consider himself under arrest. That arrest was continued: it was not a close one, but he was confined within the limits of the county. It lasted, altogether, for about three weeks, in order to allow time for the colonel to ascertain the sentiments of government upon the business. The commanding officer made a commu- nication to the lord lieutenant of the county, and by the lord lieutenant communication was made to the home secretary. The answer returned was, that as the lord lieutenant had not recommended any steps, no steps should be taken. The letter of the lord lieutenant had neither commended nor discommended the proceedings. When the answer of the home secretary was communicated to the commanding officer, he immediately intimated to the chaplain that the arrest was at an end. Government having thus refused to interfere, and allowed the individuals to settle the affair among themelves, there was no parliamentary ground for inquiring into it. How was the affair settled? The clergyman had threatened for some time to bring an action against the commanding officer: it had been suggested to him from various quarters, that it would be better that the affair should be settled by reference. This respectable person declined making a reference to any one, but the individual who was now addressing them. He had said to the clergyman, that he was the last individual to whom such a reference ought to be made. The clergyman, however, having persisted, he had accepted the reference. The award was not yet pronounced but the business was finished as far as the public was concerned. He submitted to the House therefore, that no ground had been stated for bringing the matter before parliament.

Sir James Mackintosh,

in rising to make a few observations on the very candid speeches which the House had heard from gentlemen on both sides, upon the motion of his noble friend, felt actuated by that warm affection for the interests of Scotland, which neither the lapse of time, nor distance, nor occupation would ever eradicate from his bosom. After the speech of his noble friend, so replete with facts and argument, he felt disinclined to address the House upon many of the points which it had embraced and indeed disposed of; he should therefore enter only upon the general principles of the motion. He was the rather disinclined to follow those who had preceded him, with any thing like minuteness, as the noble lord who had seconded the proposition, had done so, in a speech full of promise and distinguished for its propriety; he had given his powerful support, moved by that generous spirit which had connected the name of his illustrious House with every struggle for the civil and religious liberties of Scotland. He could not help saying that, as a Scotchman, he greatly rejoiced to see illustrious descendants of those families who once divided the suffrages and the admiration of their native land, voting with each other in the debate of that night, and displaying a constitutional jealousy of the rights and privileges of the church of Scotland. He would endeavour to sketch a few outlines of the principles from which those rights and privileges were derived. For this purpose he need trace them back no farther than the period of the Revolution. The learned lord would remember, that one of the first acts of the convention which assembled at the period of the revolution was, to declare that prelacy was one of the grievances of the kingdom: not, he believed, that the Convention was actuated by any over-ruling desire of building up a new and peculiar form of church government, but by that principle upon which they immediately afterwards declared, that they would found such a church establishment as was compatible with the petitions and inclinations of the people. He conceived that at that period, whatever new lights we might since have obtained on the subject, those who were so concerned upon the event of the revolution were desirous to consult, even in their religious system, the feelings of the majority of the people. In that age they were not a matter of utter indifference. Acting upon this principle, and feeling that it was the duty of the legislature to respect such considerations, that convention published their intention of re-establishing the church government of Scotland. The sort of creed which accompanied their declaration contained, besides some of their ordinances, an outline of the theological principle of that church. One of the articles was, that the church had no head upon earth. He would not here examine how far this could be considered a sound principle for any established religion whatever. He would not inquire whether, in subsequent periods, this principle was not more flexible; but it was certain that the church thus established was allied to the state; and it was also well known, that it was recognised at the union; and since then, down to the present time, every monarch swore to protect the church of Scotland. If, then, any law was to be looked upon as a fundamental law, it was that which established the independence of the church of Scotland. He would not dispute the authority of an act of parliament; but he would say, that no act ought to destroy the contract made between two independent nations; that every act calculated to affect it in any way should be watched with the utmost jealousy; and that in its construction the original contract should be religiously attended to. As to the act of queen Anne, he could not think that it could bear a construction which would destroy that which all our sovereigns since had sworn to protect. He thought that that act should be construed by the most rigid rules, with reference to the independence of the established Church of Scotland, and it was upon these principles he was disposed to view it. The act of Anne had been passed by her last ministers, and had for its object the support of the Scotch Episcopalian church. It gave a general order to pray for the sovereign and the electress Sophia, and it wished to impose a like duty on all the members of the Presbyterian church. It was well known that there were at that time some of the old Cameronians, whose scruples hindered them from praying for what they termed an uncovenanted king. The act intended to strike at this objection from a party which at present was no more. The act required them to pray for queen Anne and the electress Sophia while living. Now he contended that the words "while living" did not apply less to the electress than to the queen, and so he was persuaded it would be decided by any court of law—that the act in this respect was temporary in its object, though permanent in its provision.—The hon. and learned gentleman then went on to show that the convictions to which the Lord-Advocate had alluded, were ill chosen. They were taken from a period of civil tumult and public irritation, at a time when one rebellion arose out of the ashes of another, when the minds of men were not under the calm influence of reason, but heated by those passions to which all civil commotions gave rise. At that time whole scores of nonjuring clergymen were brought up, to answer before, if he might use the term, a revolutionary tribunal. He did not use the term in any other sense than to show the excess of the zeal of the men who then exercised power. That zeal he did not blame, but he feared that it led them to be influenced more by that zeal than by a strict regard for truth. He fully concurred with the learned lord in his commendations of those who then governed, and who found it necessary to exert themselves strongly in putting down the supporters of legitimacy, as we now called it, but of the divine right of kings, as it was then termed—a principle which, by whatever name it was known, he considered an odious encroachment on the most sacred rights of mankind; but he certainly could not concur with the learned lord in the propriety of selecting examples from a period when the country was heated by rebellion, which examples were intended to have the effect of controlling an act of parliament. But suppose the examples were well chosen—suppose that by a laxity of discipline the 10th of Anne was necessary in order to have the king prayed for by name—if he were to concede this, what would it prove? It left the real question before the House untouched. The true question was kept quite out of sight by the learned lord. It was not of the express injunction, but the implied omission, which he complained. The order sent to Scotland was in effect the same as that circulated in England, and in England the sense of it was clearly understood to mean, that the Queen was not to be prayed for by name. Now what reason, he asked, had the general assembly of Scotland to understand it otherwise? The act of the 10th of Anne did not, he contended, give any power which would make this order to omit binding, because there was no recognized head of the church; and because there was no act of uniformity in Scotland. This, then, could not bind them. Indeed, the learned lord himself admitted that part of the order in council was absurd; and it must be evident that it was absurd to attempt to force in this manner upon the established church of that country, an authority similar to that exercised over the church of England, which the Scottish church had ever denied, and which had heretofore produced the effusion of so much blood. This, he contended, was the effect of the order; it showed an inclination on the part of those who issued it, to establish a control which that church had ever refused to submit to. The learned lord had argued, that it had been the practice of the Scotch church to acquiesce, since 1714, in adopting prayers recommended by the king in council; but surely the learned lord must know, that such acquiescence did not render it binding on the parties to adopt it. The learned lord himself had given the best answer to this, when he said, that any clergyman in Scotland might pray for the Queen by name, if he pleased. What was this, then, but an admission, that his majesty's ministers had thus exposed the royal authority to be treated with disregard, and as of no effect? The question was a most important one, as it affected I the rights of the church of Scotland; if it I were not so, the order might be left to the contempt which it had met: but here was an attempt to alter what had been a settled and fixed principle for two hundred years; and the ground on which it went was usage. The learned lord had asked whether this usage were not a justification of his majesty's ministers? And certainly, if this had been a question as to any criminal proceeding against them, usage might have been a sufficient reason for abstaining from such a proceeding. He should have been willing to admit such an argument, provided the rights and independence of the church of Scotland were secured by an acknowledgment on the part of ministers that their order in council was mere waste paper, that it was nugatory, impotent and ridiculous. However such a concession might affect the character of ministers, however it might convince this House and the public that they were anxious in their endeavours to retain their power, but slovenly in every thing that regarded the law and constitution, still he should have considered it a sufficient atonement to the insulted independence of the church of Scotland. But the learned lord considered the issuing of the order as a legal exercise of authority, and he seemed to rely upon the general assembly not having opposed it. There were various modes of evading a proposition without directly opposing it, and the general assembly had in this respect imitated the conduct of a more illustrious body, which was known frequently to pass by a question which they did not dare to meet. They well knew, that in other assemblies it was possible to get support by such means without wounding the feelings of individuals—they were well aware, from examples which were set to them elsewhere, that it was often thought discreet to get rid of a difficulty, by turning aside from the question out of winch it arose. And how did they get rid of this question? By declaring, that it did not appear to them that ministers had any intention of injuring the church of Scotland; but, looking at the meaning in which the order was meant to be understood, they did not attempt to negative the proposition which was made. Could there, however, be any doubt that the real intention of the order in council was to omit the name of the Queen. Let the House look at what was done; a kirk session, which was something like our vestry, but that a vestry in England would not assume such a power, gave an order to a clergyman to omit the name of the Queen. Now this kirk session was not composed of ignorant men—of men who could not immediately see what the object of the order was: one of them was a sheriff of a county, who, as was well known, was an officer of very considerable authority in Scotland; the other was a judge of the supreme consistorial court. These gentlemen took the order in its general sense; not in the one which the learned lord now wished to have it understood. They took the natural interpretation of the order; and they accordingly gave the order to the clergyman to omit her majesty's name in the Stewartry of Kirkcudbright. But the learned lord had laid it down, that the order was not to be construed as binding any clergyman to the omission of her majesty's name; that the sense in which the kirk session had taken it was not the correct one; but still, he said, that he should have a better opinion of the clergyman who should understand it in that sense, and that it would show the clergyman to be of no party if he omitted the Queen's name. This, then, was the learned lord's recipe for an impartial clergyman. He believed that there were in that seat of independence, the general assembly of Scotland, many respectable individuals, who would prefer the learned lord's favour to his interpretation of the law, and who would rather retain that favour, by not taking his construction of the order than risk the loss of it by a contrary opinion. If the learned lord were thus to continue showing his favour to those who differed from him, he might indeed have some independent members who would still adhere to his construction of the order in council, but he believed the learned lord held out the means of subduing the most refractory on this point. Indeed, the learned judge of the consistorial court, who was also, it appeared, a colonel of yeomanry cavalry, took the learned lord's recipe for impartiality very early; not that he was to pray for the Queen, for the learned lord admitted that he might pray for any individual, but he fell in with the natural sense of the order, by directing the omission of her majesty's name. As to the private dispute which the clergyman, to whose excellent character such respectable testimony had been borne, had referred to the learned lord's arbitration, he would not say any thing farther than that he could not have selected a more just umpire than the learned lord, and no doubt the award he had given, and which he had properly concealed, was a most judicious one. But the question here was, not the private injury which might have been sustained; but whether, in consequence of an order, which was admitted to be nugatory and useless, a subject had lost his liberty for any time. It was for this reason he wished that the House should see the order and make the proper inquiries respecting it; and it was on this ground he would support the motion of his noble friend.

Lord Castlereagh

observed, that so little impression had the speech of the hon. and learned gentleman produced upon the argument of his noble friend, that he did not intend to dwell upon it for a moment. He rose rather for the purpose of calling back the attention of the House to the real question before it; but first he should remind the House of the objections which he had made on some former occasions to those who maintained that the tranquillity of the country depended on the insertion of the Queen's name in the Liturgy. He had stated, on such occasions, that if such were considered to be the case, those hon. gentlemen should have put the question into some shape in which it could be met directly and fairly, and not endeavour to introduce it by a side wind. He did not know whether those observations of his had produced the motion of the hon. gentleman (Mr. J. Smith) which the House had disposed of in such a marked manner; but he assured the noble lord, that the objections he had then made did not apply to such a motion as that now before the House. At the same time, it appeared to him that this motion was by no means called for by the circumstances which had been mentioned. With respect to the speech of the hon. and learned gentleman who spoke last, it certainly did appear to him to have been intended for a more recondite subject; and it did not at all apply to the motion before the House. The hon. and learned gentleman seemed as if his object had been to defend the church of Scotland from some supposed inroad upon its rights, and having got the outline of the argument in his mind, had come down and applied it to the motion of the noble lord. What was really the case which the House had been called upon to consider?—two instances of individual injury. And how had they been answered? He hoped that the answer would not be forgotten; and he trusted the present would be a lesson to hon. gentlemen, not to bring down subjects for discussion in that House which was not, if there were any ground for trial, the proper place to try them, but would leave them to the courts which could legally take cognizance of them. Such questions were brought down—the business of the session was delayed in discussing them—and it must be obvious, that they could answer no other purpose but that of sending statements abroad calculated to poison the public mind. What, he asked, were the cases introduced? They were cases already settled: one of them referred to the decision of an inferior court, which had been disapproved by and set aside by the superior court; and the other was the case of an individual to which his majesty's government had given no sanction or approval. Why, he again asked, were not such matters left for the decision of the law courts, and why was the House called upon to waste its time by discussing such cases? He hoped that what had occurred that night would be a lesson to the noble lord by whom this motion was introduced. When the noble lord had heard the lord advocate's arguments respecting the act of queen Anne, he must have felt his motion fall from his hand. But it had been alleged, that the liberties of the church of Scotland were invaded. He must be excused for saying that this motion, like many other motions respecting the Queen, was made for any other purpose than for tranquillizing the country; and he would say that the hon. and learned gentleman who spoke last, could have more usefully applied his talents, than by the observations which he had made on this motion, and by endeavouring to awaken alarm, as if the liberties of the church of Scotland were invaded. The hon. and learned gentleman might, if he was not satisfied with the cases which the learned lord had cited, get a reverend friend to act in contravention of the act of queen Anne; and his reverend friend might then bring the case before the court of session; and the hon. and learned gentleman might in consequence have a more modern proof of the meaning of the act. The cases cited by his right hon. and learned friend had been, said to have occurred in times of agitation and warmth; but, if cases occurring in times of warmth could be on that account set aside, he might object to the abolition of general warrants, which the hon. and learned gentleman had justly characterized as a public benefit, for no decision had been pronounced in warmer times than the time in which general warrants were decided to be illegal. But he again repeated, that it was perfectly open to the hon. and learned gentleman to provoke offence, for the purpose of amicable discussion. To other minds, certainly to his (lord C's.) unlearned understanding, no arguments could be more satisfactory than the arguments of his right hon. and learned friend. His right hon. and learned friend had in his candour admitted that the 32nd of George 3rd was not applicable. He (lord C.) did not admit that it was inapplicable, because separate instruments were not to be issued for the separate bodies in Scotland. He was justified in precedent and common sense, in saying, that such instruments were sent collectively to the church of Scotland and the Episcopalian church, and collectively to the Episcopalian church and the church of Scotland. As far as the words of the act could show the sense of the framers of that act, respecting prayers for the Queen by name, it was very remarkable; and he begged to point it out particularly to the attention of the House. The church of Scotland, it would be remembered, was bound by the same liturgy as the Episcopalian church of England. This act (the 32nd of Geo. 3rd.) was exclusively for the Episcopal church of Scotland. He would quote the words to which he alluded:—"pray for his majesty by name, his heirs and successors, and for the rest of the royal family as directed by lawful autho- rity." He dared to say that "lawful authority," here again would be explained by the Act of Uniformity. But in this act, passed in the year 1792, when a queen consort lived in this country, than whom no queen was ever more entitled to the prayers of her people, no mention was made of the queen, and no allusion to her existence occurred but by an illegal interpretation of "lawful authority." So in the question of the Liturgy, there was no ground for claiming the insertion of the Queen's name but by what he called an illegal construction of the Act of Uniformity. The case he repeated, was so completely and unexpectedly taken from under the noble lord opposite, that he must view it as quite untenable; for the noble lord could not have come down with a case, knowing it to have such an evident and enormous flaw.

Mr. J. P. Grant

said, that the order in council had been shown to be most absurd and preposterous; and he must add, that it was most illegal. He would refer to the act of the 5th George 1st, chap. 29. This act had been passed in 1719. The last case quoted by his right hon. friend was in 1718, consequently the act was later authority than any of the cases cited. His right hon. friend said, that the act of Anne was still in force. Now, the 5th of George 1st prohibited any number of persons, exceeding nine, to assemble in a meeting-house or episcopal place of worship, who did not pray for the King, the Prince and Princess of Wales, and their issue, under the pain of imprisonment for six months. In this act there was no reference to the act of queen Anne. How, then, did the case stand? The act of Anne was either effectual, or it was ineffectual. If it was effectual, there was no need of a new act; if it was not effectual, and a new act was required, then had the force of the act of queen Anne ceased with her life. But, according to the noble lord, the 82nd of the late king applied to the church of Scotland, as well as to the Episcopalians. We were then in this situation: the act of George 3rd, repealed the act of Anne in favour of the suspected, against whom it had been originally passed, and left it in full force against the unsuspected, for whose protection it had been passed. He agreed with the noble lord, that the House ought not to interfere in cases of individuals; but the order in council was an attempt to introduce supremacy. He was certain that the lord advocate had not been consulted; for he would have advised differently. But the interference had taken place first, and the law was found for it afterwards. The effects of the order were most injurious to the best interests of religion and peace. What motive then could have suggested it? He could imagine no motive but a desire, impotently indeed, but most illegally, to testify hostility to the Queen. It was a grave charge against ministers, that they had committed his majesty's name to what was, upon their own confession, nugatory.

Mr. Maxwell

said, that if the noble mover had brought forward his motion for party purposes, as insinuated by the noble lord opposite, he, for one, would not support it. But he was satisfied that the motion had no such object, and thought the order was issued for the purpose of prejudging the Queen.

Lord A. Hamilton

briefly replied. If the act of queen Anne was sufficient for their purpose, why was the order in council issued? The arguments of the case had been so ably disposed, as to leave him nothing to add. If the interpretation of that night, assumed by his majesty's ministers, namely, that they possessed a right to order the church of Scotland, should go to that country, he feared the House would lament that such an interpretation was ever made. The noble lord had charged him and his hon. friends around him, with a desire to poison the public mind. Now, if there was one man who had done every thing in his power to poison the public mind, to affix an indelible stigma on royalty, and to divide royalty against itself, it was most undoubtedly the noble lord. He had endeavoured, not alone to poison the public mind, but the very laws themselves, when he ventured to broach that most reprehensible doctrine, that after a trial, the Queen, though technically acquitted, was morally convicted. Such an assumption was an entire subversion of the principles of justice—it poisoned the administration of the laws at their source. He professed he could not see the possibility of the country being tranquillized as long as that declaration was withdrawn undenied.

Lord Castlereagh,

in explanation, said, that he did not attribute any improper intention to the noble lord. He meant merely to state, that such motions had the tendency to irritate the public mind. With respect to the Queen, what he had observed was, that the acquittal was similar to such an acquittal in the courts below, as followed from a flaw in the indictment, or on a point referred to the judges.

The question being put on the first motion, the House divided: Ayes, 35; Noes, 102. Majority against the motion, 67. The second motion was negatived.

List of the Minority.
Althorp, visc. Nugent, lord
Allen, J. H. Ord, Wm.
Bennet, hon. H. G. Parnell, sir H.
Creevey, Thos. Ricardo, D.
Crespigny, sir W. Rice, T. G.
Crompton, J. Roberts, Abr.
Davies, T. H. Sefton, lord
Denman, Thos. Scarlett, James
Duncannon, visc. Sykes, D.
Ellice, Ed. Talbot, R. W.
Fergusson, sir R. Tennyson, C.
Folkestone, lord Webb, Ed.
Glenorchy, lord Western, C. C.
Harbord, hon. E. Wetherell,C.
Hill, lord A. Wood, ald.
Kennedy, T. F. Wyvill, M.
Mackintosh, sir J. TELLERS.
Maxwell, John Hamilton, lord A.
Newport, sir J. Grant, J. P.