before' he proceeded to the motion of which he had given notice, was desirous that the minutes of the 18th, 19th, and 21st instant should be read. He could not but express his satisfaction at seeing, on the last day previous to the prorogation, that the delicate matter—for delicate he could not but call it—which he was about to bring forward, would receive the consideration of so full a House. He felt satisfaction also, that, if his recollection should fail him as to facts, he spoke in the presence of many noble persons who witnessed what had passed, and he was sure would acknowledge the correctness of his statements where they were correct, or set him right if he should in any respect be in error. But if there lordships should not agree to adopt his proposition, they would at least bear this in mind—that it was not impossible, even at the shortest notice, to procure a numerous meeting of that House. Their lordships had given a practical proof that at that very late period of the session, a full attendance of peers could be obtained on four and twenty hours' notice. Those persons, therefore, who had such a feverish apprehension on all subjects connected with this important bill as it was called, must have had full opportunity to attend if they pleased. He then moved that the minutes be read. [Here the minutes were read by the clerk.] His lordship also moved the reading of the following Protest.
"DISSENTIENT.—Because, on general principles, I object to any concession to Roman Catholics, cither collectively or individually; and the bill violates the constitution, by enabling a Papist to hold high office near the person of a Protestant king, and dispenses with those oaths which Protestants are bound to take. Because the practical effect of dispensing with the oath of supremacy to Papists must of necessity create a constitutional jealousy on the part of the Protestants, thereby ge- 1483 nerating feuds and animosities, most especially at the present time, when Papists avow their intentions by language and acts so undisguised, that they cannot be misunderstood.
"Because, to sanction the separation of the oaths of allegiance and supremacy, is to establish a most dangerous and alarming precedent, inasmuch as the union of church and state forms the basis of our constitutional greatness and excellence, freedom and security. And lastly, because at this very late period of the session, and at the early hour of five o'clock, before peers arrived at the House, the present decision cannot be considered to be the sense of this House, many peers being absent, and the House taken quite unawares. For these reasons, and having the welfare of my country indelibly at at heart, I solemnly protest against this bill, and other measures of a similar nature which are in a constant course of progression.
now rose to complain to their lordships of this protest. Their lordships would perhaps think it strange that he should consider himself called upon to make any animadversion on a protest, more than any other noble lord had who thought it his duty to be very free in tendering protests against the decisions of the House. Before he sat down he would conclude with a motion, conceived in words on hearing which he believed their lordships would acknowledge, that at no period in the last 120 years would such a protest have passed without a more severe censure. He complained of this protest on two grounds; in the first place, that it left a general impression on the minds of those who heard it exactly the reverse of what the facts accurately stated would produce; and that of the seven propositions which it contained, one only expressed a fair difference of opinion; and that the other six were misapprehensions of the orders and practice of their lordships' House, or proceeded from a want of right recollection of facts and circumstances, or constituted a direct attack on the honour of the House—an attack, which tended to subvert all respect for the laws of the country and those regulations upon which all deference to the proceedings of that House rested. He referred more particularly to these words —" And lastly, because at this very late pe- 1484 riod of the session, and at the early hour of 5 o'clock, before peers arrived at the House, the present decision cannot be considered to be the sense of this House, many peers being absent, and the House taken quite unawares." Now, he would ask their lordships what would be thought on reading this protest, by any man not conversant with the hours of attending in this House, or by any individual who was not present at the transaction to which it referred? He would ask whether the impression would not be, that the subject was quite new to the House, and had not been beard of in the course of the session—that it had been taken suddenly up and contrary to the regular course of business—that the bill had been hurried through in a manner quite unusual—that no pains had been taken to procure due attention to the subject from their lordships who could attend, and that no opportunity had been afforded to those who could not attend to send their proxies? Was not all this likely to be the impression on any man's mind who was not acquainted with the facts? So far, however, from this being the general complexion of the transaction, that the bill which had been passed was one which related to, and had for its object, a matter which had been very recently under their consideration; that it came recommended by persons of high authority, both agreeing and disagreeing on the great question of Catholic emancipation; that the measure was in no one instance objected to, except on the ground of form; that it was not hurried through the house; and that ample opportunity was given for the attendance of such of their lordships as chose to be present. He must confess, that the most difficult part of the task which he had that day imposed upon himself, consisted in noticing such frivolous objections—objections which applied more to the bill brought in by the noble earl opposite, and which had also received the sanction of parliament. That noble earl gave notice of the bill he introduced, and there was some expectation that the Earl Marshal's office would have been included in the measure. The House was then taken by surprise; but it was the surprise that that measure was not included. The noble earl, however, explained his conduct satisfactorily but did he object to the object of the bill against which the protest was directed? By no means He stated, that he refrained from including that office 1485 on three grounds; 1st, that from the dignity of the Earl Marshal's office, it would not be proper to make it a part of a bill relating to officers of the revenue; second, that the urgency of the case required the immediate passing of the bill; third, that he had doubts, whether the noble Earl Marshal would like to be restored to his office in the manner proposed. Now, would any man say, after this, that his bringing in the bill could be taking the House by surprise? It was not perfectly regular to take notice of any conversation which passed in that House, except such as occurred openly at that table; but he would say, that after the discussion to which he had referred, scarcely a day had passed without some conversation having taken place on the propriety of bringing forward this measure. In the mean time, a stroke of Providence deprived his excellent and illustrious friend, the noble duke, of a near relation, and left him without any person to whom he could immediately wish to delegate the exercise of his office. It was then felt that this was the proper time to bring forward the measure on which the general sense of the House had previously been expressed. He should show that the House had not been taken by surprise, and that no one had any right to say so. At the same time, he wished it to be understood that he would always stand up for the right of a minority to enter a protest against any proceeding to which they objected. They were always entitled to exercise the privilege of recording their opinion. With regard to the objectionable part of this protest, the statement, that the bill was brought in at a late period of the session was correct. If that statement had stood alone, there would have been no objection to it; except that the circumstance complained of was not unusual. But what would be thought of this objection if their lordships referred to what had passed in other years? He wished they would consider what sort of bills were brought up and passed at the close of the session. In the present year a very unconstitutional act—The Irish Insurrection act—had been passed with as thin an attendance, and less notice, than the bill protested against. If their lordships looked at the Journals at the latter period of almost every session, they would find that coercive measures, and bills which had for their object pains and penalties, were then generally introduced, 1486 and very little attended to. Were they then to understand, that whenever a bill, infringing on the liberties of the people was proposed, they might pass it in' as thin a House, and with as little consideration, as they pleased; but that when a bill of boons and concessions was proposed, every absent peer ought to be consulted? The next clause of the protest censured the passing of the bill at the early hour of five o'clock. In this statement there were two propositions, both unfounded— first that five o'clock was an early hour; and secondly, that the bill did pass at five o'clock. In the first place, five o'clock, so far from being an early hour, was the period which, by general agreement, had been appropriated to the transaction of public business. It was wrong, therefore, to say that this particular business came on at an early hour. It was the duty of every noble lord to attend when the House was sitting. Every noble peer was entitled to bring forward a subject whenever he pleased. It was merely in consequence of the usual courtesy that he did not stand up yesterday and make the motion he now intended to make, instead of giving a notice as he had done. It was a little too much, then, to be accused of an irregularity, when the courtesy and forms of the House had been strictly adhered to. The general rule was, to proceed to public business at five o'clock. Exactly as the minute-hand came upon the number twelve, he took the bill in his hand and went up to the table. Some person near him said, "Go on, move;" but, observing that some noble lords had petitions in their hands, he said, "Let the petitions be first presented." Accordingly, eight petitions were immediately presented. A short conversation afterwards took place at the table. A noble relation and friend of his, if the noble duke (Richmond) would allow him to call him so, also presented several petitions. One petition was also presented by another noble lord. A noble friend of his (earl Grosvenor) adverted to a measure which had occupied the attention of their lordships, and actually made a motion. After all this had been done, he again rose, and moved, that the order of the day be read; which being done, he proceeded to move the third reading of the bill. He introduced that motion by two or three sentences. He did not think it necessary to say much; but it must be in the recollection of many of their lordships that he stated enough to apprize the 1487 House of what was going on. The next proposition to' which he should advert Was, "that no peers hart arrived." Now, he must assert that many peers had arrived, and he declared, upon his honour, that if any noble lord had proposed to postpone the third reading, or to adjourn the proceedings on it for a short time, during pleasure, he would have consented. He did not say that he would have agreed to have given precedency to any bill which would have been likely to have caused discussion, because, if a bill were viased late in the night, the chance of its passing that same night through one stage of the Commons might be lost. But, he had another reason for not giving the precedency to any other bill which might have caused delay. He wished to take the opportunity of a full attendance, and he could, from his own experience, assert, that the House was generally a good deal better attended at five o'clock than at seven. Five o'clock, then, was not an hour by which the House could be taken by surprise; such surprise was, indeed, more likely to occur at the latter hour, when noble peers absented themselves for some cause which he should not attempt to describe. He was not here talking of theory, but of practice: for, on that very day, at a later hour, a bill of great importance had passed—a bill enacting severe punishments on subjects of this country. He had voted for that bill because he had thought it was necessary. It passed at a quarter before seven: the Earl Marshal's bill soon after five o'clock. What occurred then would substantiate all that he had before said—that when the liberty of the subject was in question, no anxiety was shown as to the state of the House. The minutes of the House would prove, that upon the third reading of the Welch judicature bill, the numbers of the division had been only eight to three. If the noble lords who signed the protest had chosen to divide the House when he moved the third reading of the Earl Marshal's bill, they would have found at least three times the number present. The noble lords, however, seemed to think nothing of a measure imposing penalties, while the Earl Marshal's office Was, in their opinion, a subject which, like the Queen's trial, required the attendance of every peer. It was true, the forms of the House allowed absent peers to express their opinions by proxy; but that opinion was not given from what was heard in the debate. The 1488 noble lord who voted by proxy, confided it to one whom he singled out, on the ground that he was likely to hold the same opinion as himself. This proceeding was consistent with the practice of parliament. He did not condemn it; but he wished noble lords who were so anxious for attendance, to consider well on what basis it was that tranquillity and submission to the laws depended. He wished to ask those noble lords who were so fond of appealing to the constitution and the laws, what they considered to be the foundation of that constitution and those laws? Did not the authority given to the laws depend on the consent of the two Houses of parliament, and the assent given to them by the king? There was an act of parliament for which the noble lords had great respect—that law which excluded Roman Catholics from seats in that House. He wished they would read what Protestant writers had said on the subject of that law. He wished they would read what the historian Ralph, who was a zealous Protestant, had said of the manner in which that law passed through both Mouses of parliament. Writing seventy years after the transaction, he described it to have been carried in the midst of riot, and in a manner more like the violence of a mob than what ought to be expected from a senate-house, or the representatives of the people. Would it be said, then, that this law was not to be called the sense of the House? How was that sense to be known, but by the state of the votes? Sense or nonsense, that act was now the law of the land: and every time that their lordships took their seats in that House, they had to take the oaths and sign the declaration which it required. More had been done this session in calling together the peers than had ever been the practice. Now, his own opinion of that practice was, that it was a great advantage and convenience to their lordships; but, con-stitutionally speaking, he was not sure that it was not a great innovation; certainly it was a greater innovation on the constitution than permitting the Earl Marshal to perform his own functions rather than by deputy. It might be that on this occasion many lords were absent; in fact, he had never known but on the occasion of one bill that the majority of lords were present: 351 was, he believed, the number of which their lordships' House consisted, and he certainly never recollected 176 on a division but once. He 1489 had thought it his duty on presenting the bill, to explain his motives for it, and the reasons which existed for expediting it through the House. Every person, therefore, who attended the House had ample notice that such a measure was in progress, and that a disposition existed to expedite it through the House: and those who knew how very near it was to the close of the session, must have been aware of the necessity there was for the bill to pass early in the day. When first his attention was called to this subject, he had looked for precedents, and he found that in 1701 a protest which had been entered was so effectually expunged, that no records of it remained either in the Journals or in any of the publications of the time; but it must have been one in which the majority thought an incorrect statement of facts had been made. The next instance was one of a bill connected with this question, brought up from the other House of parliament, and a very long and able protest was signed by those who were called the Jacobite peers. The earl of Sunderland complained of it, and then up jumped the then duke of Newcastle, and what did he do?—what he (lord Holland) now proposed to do? No, but with "one fell swoop" he took off from the Journals the whole of the reasons. What was the consequence? A long struggle took place between the expungers and the enterers of protests; and he had the satisfaction of stating that the minority beat the majority on that subject; they proved that expunging the protests was not only wrong in itself, but that it defeated its own purpose. They went on protesting, and the whole thing was virtually given up, as the majority did not expunge the reasons against expunging. This precedent at least showed that, in the year 1722, the majority thought there were reasons for expunging. In adverting to a more ancient and more reasonable precedent, he had a little malicious pleasure; as it was a protest against that bill which was brought in, and which infringed for the first time the birthright of the peerage of this country, by exacting an oath previous to discharging their duty in that House. That bill was called, or nicknamed, the Bishop's Test. It was lost in that House, and was objected to by lord Shaftesbury, and by all the eminent men of the time, on the principle, that the birthright of the peerage was too sacred to be touched by the authority of 1490 that House. It was thought, and perhaps rightly, that that was denying the authority of an act of parliament. In conclusion, the noble lord said, that the course which he proposed to adopt on the present occasion was, to submit a resolution, containing a statement of facts, and ending with a permission to the noble lords who had signed the protest, to withdraw that protest, if they thought proper. After reading the protest, his lordship concluded, by moving, "That their Lordships had been duly summoned to attend on Friday, to take into consideration the Standing Orders on the occasion of the Earl Marshal's Bill; that the House came to no resolution thereon, but discharged the order; that the Bill was read for the second time on Saturday, the Committee being dispensed with; and that on Monday, the 2lst instant, it was read the third time, after five o'clock, some of the Lords present having said not content, but none of them having called for a division, nor objected to the hour at which the question for the passing of the Bill was proposed."
§ The Earl of Abingdon
said, that as one of those who had signed the protest, he felt it incumbent on him to explain the principle upon which he had acted. Conceiving that the bill was perfectly unconstitutional, he had opened the Journals of the House to see if any protest had been entered against it, and finding that there was, he did not hesitate to affix his signature under a conviction that the bill was one which ought not to have passed. The object of the bill was, to enable the Earl Marshal to enter upon the duties of his office without taking the oath of supremacy —an oath which he (the earl of A.) conceived to be necessary to the protection of the constitution. In the oath of allegiance to his majesty, as taken by the Catholics, the words "he being Protestant" were left out, and great danger might arise hereafter from the omission of expressions that went to recognise and secure the Protestant ascendancy. If their lordships were to infer from what he had stated, or from what he had done, that he held the Roman Catholics in detestation, they would commit a great mistake. It was not from any feeling of animosity towards them, but from a disinclination to countenance any infringement of the constitution, that he had signed the protest which he had foundalready written. It was in this sense alone that he wished his protest to be understood, and he would 1491 have no objection to amend it in such a manner as would confine it simply to that interpretation.
The Duke of Newcastle
said, he rose with considerable embarrassment to address their lordships, being very little accustomed to speak in public. He would not enter at length into the various topics which the noble lord had introduced, but would confine himself altogether to the facts of the case. He wished, however, before he did so, to express his thanks to the noble lord for the temper in which he had brought forward his motion, avoiding every thing that could hurt his feelings, though intending to invalidate his protest. He could assure the House, on his own part, that he entertained no feeling inimical to the earl marshal, but directly the reverse. His objection to the bill was, not from any disrespect towards him, but because it was a favour, and a dangerous favour, granted to the Roman Catholics. It was, as he conceived, unconstitutional, and contrary to those principles which ought to be held most sacred. He begged to observe to the House, that every thing alleged in his protest he believed to be true; if he did not believe every word of it to be true, he was not the man who would wish to insert it on the Journals of the House. Like other men, he might have fallen into error. He might at present be labouring under an erroneous impression, though he did not think he was; but if such was the opinion of the House, he would willingly submit to the adoption of any course which they might think proper to recommend. He would take leave to repeat his opinion, that the bill had been hurried with indecent rapidity through its stages. It first came down on the Friday, on the Saturday it was read a second time, the committee having been dispensed with; and on Monday it was read the third time, and passed, as he thought, before five o'clock; but of that he could not be positive after what he had heard. It was passed however at an unusual hour, for a measure of such importance, and in the absence of many noble lords who wished to speak and to the against it. Convinced that what he had stated was right, he was unwilling to retract. But, if the general sense of the House was otherwise, he would not oppose himself to their opinions. Throwing himself, therefore, entirely on the mercy of their lordships, he would be directed by them.
§ The Duke of Richmond
said, that as he 1492 had been called on by the noble lord to bear testimony to one fact, he was bound to state that it was past five o'clock on Monday when he presented several petitions.
The Lord Chancellor
observed, that after a bill had once passed, the sense of the House must be considered as having been distinctly pronounced upon it; whatever might pass out of doors, such was the doctrine that must be maintained within. If upon any occasion the sense of the House was supposed to have been too hastily taken, there was one way of enabling them to retrace their steps—by moving for the repeal of the bill. He was far from insinuating that such a course ought to be pursued in the present case: his opinion was decidedly otherwise; and as for the question of hours, if their lordships thought proper to pass a bill at eleven o'clock in the morning, instead of five in the afternoon, still no one could deny that it would be the sense of the House. With respect to the oath of allegiance, he must say, as a lawyer, that it contained in it every thing included in the oath of supremacy: that the oath of supremacy was, in fact, added as an explanation of the oath of allegiance, or as lord Hale had expressed it, was passed to unravel the errors that had crept in. It was his intention to move an amendment, stating the facts more fully than they were detailed in the motion of the noble lord. Among other circumstances, his amendment would notice, that the Welch judicature bill stood before the Earl Marshal's bill on the orders. He did not mean to have it inferred from this, that their lordships were bound to take the orders in the succession in which they stood, but to shew that others might naturally fall into that mistake, on recollecting the usual practice of the House.
The Earl of Lauderdale
protested against the inference, that the House was bound by any rule in such cases.
said, he should have no objection to the amendment suggested by the learned lord, but he should introduce one which he thought would meet with the concurrence of the House, especially after the candid manner in which one noble lord had explained the grounds of his protest. His lordship concluded by moving, "That the noble lords who had dissented, should be allowed to confine their dissent to such reasons, or parts of the reasons, as they thought proper."
§ The motion was agreed to nem dis.