Lords Sitting of 24 April 1828

CORPORATION AND TEST ACTS REPEAL BILL.
Lord Holland Lord Holland moved the order of the day for receiving the report of the committee on this bill.
The Earl of Eldonsaid, he had some amendments to move, to which he wished to call the attention of the House. The first clause of the bill, as it now stood, would go to repeal the act of Charles 2nd; to which he could not consent. He was also bound to say, that he had received some information with regard to the second clause of the bill. In his apprehension, the second clause, as it was now worded, though he was conscientiously satisfied that it was not intended to be adopted in the construction it would bear, was worded in the most artful manner possible. The second clause was stated to be, and undoubtedly was, introduced from those bills, which had been brought into parliament for the relief of the Roman Catholics,
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The recital, as far as it went, was correct, but it left out the most essential part of the bill from which it was borrowed. The original passages as it stood in the Act of Union was in these words:—"Whereas, it is reasonable and necessary, that the true Protestant religion professed and established by law in the Church of England, and the doctrine, worship, discipline, and government, thereof, should be effectually and unalterably secured." The difference between this clause and the preamble of the present bill was, that the former stated, that the "true Protestant religion, professed and established by law in the Church of England, and the doctrine, worship, discipline, and government, of that Church should be effectually and unalterably secured," but the present bill left out any provision regarding the Protestant religion; what he proposed, therefore, was, to make the bill avow, that the Protestant religion "as professed and established by law in the Church of England, was as inviolably established as the doctrine, worship, discipline, and government, of that Church itself." The Act of Union stipulated also, that "the Acts of parliament now in force for the establishment and preservation of the Church of England shall remain and be in full force for ever." The Test and Corporation acts were then in existence, and it seemed that a very different opinion was then held as to their necessity. It was his intention in making this proposition, to put upon record in their lordships' Journals, that there were some individuals who were desirous that these Acts should still be preserved. He agreed, on the one hand, that their lordships should not, on account of any apprehension they might have respecting the Roman Catholic claims, refuse to give relief to the Dissenters; but, on the other hand, he trusted that whatever they did, while they took care not to prejudice the Roman Catholics, the bill would leave that question exactly as it was before. The learned lord concluded by moving the insertion of the following words: "And whereas the true Protestant religion, as professed and established by law in the united Church of England and Ireland, and the doctrine, worship, discipline, and government, thereof, should be effectually and unalterably secured; and whereas the true Protestant religion, as professed and, established by law in the Church of Scotland, with the doctrine, worship, discipline,

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and government, thereof, should be effectually and unalterably secured, all the Acts of Parliament for the establishment and preservation of the said Churches in force at the time of the union with Scotland, are hereby declared to be in full force for ever."
The Earl of Clarendonsaid, he could not but look at this amendment with some degree of caution, as he was entitled to do, after the learned lord had professed his intention of opposing, and, if possible, of defeating, the bill. As a means of accomplishing his object, the learned lord proposed an alteration, which in effect amounted to this—that no statute relative to the Roman Catholics should be altered, but that they should remain invariably the law of the land. If, therefore, any of the various acts had been passed for the relief of the Catholics, or a clause to this effect had been introduced into any bill, parliament would have bound itself not to pass them. The effect of this clause would be, therefore, greatly to prejudice the cause of the Roman Catholics.
The Duke of Wellingtonwas of opinion, that if the proposition of his noble and learned friend did not refer to the Catholics, it would be of no use whatever. If his noble friend intended also to propose an alteration in the Declaration to the same effect, he must oppose it. He had stated that it was not his intention, in giving his support to this bill, to pledge himself to any step, either on one side or the other, as to the Catholic question. His opinions on that subject remained exactly as they were. His object in giving his assent to this measure was simply to do away with the Sacramental Test as a qualification for office. He went no further than that. The proposed amendment would not make the smallest alteration in the bill for any good purpose, and therefore he could not agree to it.
The Earl of Eldonsaw no reason why the word "Protestant" could not be introduced, with respect to corporations in England. All he meant was, that any man about to be introduced into a corporation in England, should first declare himself to be a Protestant. He knew that the object of the present bill was neither to prejudice nor assist the views of the Roman Catholics: but he would say, that if it passed in its present shape, parliament would have gone a great way in promoting the views of the Catholics. His only ob
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ject in proposing this amendment was to prevent persons of that persuasion from gaining admission into corporations.
The Earl of Falmouthexpressed his perfect concurrence in the sentiments of the noble and learned lord who had so long stood up in defence of the Church. The Sacramental Test was the only provision that excluded Roman Catholics from corporations; and corporations, their lordships knew, were the door to parliament.
The Earl of Harewoodbegged the House to reflect on the step they were about to take. The Dissenters had petitioned for relief, and he understood that they had united themselves with the Roman Catholics [No, no]. It appeared so, he thought, from the petitions on the table. He could see no objection to the introduction of the words proposed by his noble and learned friend: he did not see that they could in any way do injury to the Dissenters, who were all Protestants. What would the country think of the intentions of parliament, if this amendment should be rejected?
The Bishop of Chestersaid, that every person, on becoming the member of a corporation, was obliged to subscribe the Declaration against Transubstantiation, and take the Oath of Supremacy. He did not see, therefore, if this bill passed without the learned lord's amendment, how the Catholics would be a single step nearer their object. With respect to himself, and his right rev. brethren, the only question appeared to be, whether there was security for the Established Church. The Dissenters offered security which was considered sufficient, and then their exclusion became indefensible. But it was a different question with regard to the Catholics, as they could give no sufficient security. They could not be admitted to office without involving danger to the Protestant Church. If they could offer adequate security, the question of their exclusion would be at an end. The decision of this question, therefore, could not involve the decision of the Roman Catholic question.
The Duke of Newcastleentreated their lordships not to suffer this bill to pass without introducing the word "Protestant" into the Declaration, as proposed by the noble and learned earl.
The Bishop of Llandaffsaid, that while the learned lord professed a wish to leave

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the Roman Catholic question on open ground, the object of his amendment seemed to be to affect that question.
The Duke of Wellingtonsaid, that the Declaration, as proposed to be amended by the learned earl, would affect officers in the army and navy, some of whom must be in this country, and many of whom, it was well known, were members of the Roman Catholic religion. Now, as the amendment of the noble earl would have the effect of excluding them, he must oppose it. He contended, that it was not the object of the framers of this bill to introduce Roman Catholics into corporations in England. In Ireland they were already eligible.
The Lord Chancellorthought, that the word "Protestant" ought to be introduced into this Declaration, in order to leave the Catholic question clear and unprejudiced, when it came on for discussion. As he understood the law at present, it was not necessary, in order to be admitted a member of a corporation, to take the Oath of Supremacy; it was only required to do so on becoming a member of its government, such as mayor, bailiff', common-councilman, &c. Now, if it were not necessary to take that Oath, the consequence of this bill would be, that there would be no obstruction to a Roman Catholic becoming an individual member of any corporation. What he understood from his learned friend was, that his amendment was only intended to refer to the Declaration to be taken on becoming a member of a corporation; and he thought the House ought to adopt it, in order to guard against taking any step affecting the other question.
The Earl of Eldonsaid, that all they would do, if they agreed to his amendment, would be to exclude Roman Catholics from corporations. Their lordships ought not to have this act so expressed that persons might hereafter say that it operated in furthering the views of the Roman Catholics. He did not now ask their lordships, although he wished them to do so, to carry this amendment to the other clauses of the bill. All he now said was—let them take care not to open the corporations in England to the Roman Catholics; for he repeated, that a mayor or an alderman was not, as such, necessarily a justice of the peace. As the law now stood, the merely taking the Oaths of Supremacy and Allegiance, without the
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Declaration against Transubstantiation, was not sufficient to render an individual eligible to enter into a corporation, or to take office in this country. The present measure, however, worded as it was, did not require that Declaration; and persons who only took the Oaths of Supremacy and Allegiance, omitting the Declaration against Transubstantiation, might be placed in official situations. Day after day, Dissenters were acting in such situations, under the sanction of acts of Indemnity. Those acts were not, in fact, passed merely for indemnifying persons because they had not taken the Oaths of Supremacy and Allegiance, but because they had not taken the oath relative to Transubstantiation. Now, so sure as he existed they would not have to pass one bill of Indemnity less than they now were called on to pass, with reference to admission into corporations, if they did not take care so to alter the bill as that Roman Catholics should not be admitted into those bodies. No Declaration, unless it contained such a provision as he meant to propose, would give that species of security, which, in his opinion, they had a right to have embodied in this bill. Such was his opinion, and to that opinion he would adhere, although it might be opposed by all the ability of the most powerful members of that House.
The Bishop of Bath and Wellssaid, he entertained so high an opinion of the authority of the noble and learned lord, that he felt called upon to vote for his amendment.
Lord Hollandsaid:—As far as I have been able to collect, there is one point on which we are all agreed, namely, that the words of this bill should be such as neither to prejudice nor promote the Catholic question—"Therefore," says the learned lord, "adopt my amendment," Therefore, I reply, reject that amendment. If I can show, either that the amendment is actually unnecessary and ineffectual, or if it have any effect, that that effect will be to place the Roman Catholics in a worse situation than that which they at present occupy, I shall have said enough to satisfy even the learned lord, that his proposal ought not to be adopted. He states, that if the mayor or alderman of a borough are also justices of the peace, they are called upon not only to take the Oaths of Allegiance and Supremacy, but to sign the Declaration against Transubstantiation; but

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that if they are not also justices of the peace, the latter may be and is omitted; so that, according to the learned lord, they sign it in their capacity of justices of the peace, and not in their capacity of members of a corporation. I must bow, unquestionably, to such high legal authorities as the learned lord, and the occupant of the Woolsack, and, according to my opinion, it is true, as far as relates to the Corporation act; but by the other act, on which the Sacramental Test rests, and which enforces also the necessity of taking the Oaths of Allegiance and Supremacy, I was not, until now, quite sure that a candidate for office was compelled to sign the Declaration against Transubstantiation. I know that it has been ruled both ways in courts of law; but I was not aware that the point was so absolutely settled with reference, I mean, to that act, whose preamble contains the words, that the bill is passed "for quieting the minds of his majesty's subjects." Then one of two things must follow—either it does apply or it does not: if it does, under that act Roman Catholics are excluded; if it does not, of course, they may be admitted. The preambles to which the learned lord has alluded, speak of the doctrine, discipline, and government, of the respective Churches of England and Scotland; and it is asserted in them, that such doctrine, discipline, and government, by the laws of the realm, have been settled and established permanently and inviolably. Such is the Declaration of the preamble; but whether it is such a preamble as ought to have been adopted, is another question. The learned lord has thrown out an insinuation, that the framer of the particular clause must have felt that some particular advantage to the Roman Catholics might be drawn from it. Who was the framer of the clause? Perhaps it may not be very delicate to allude to the point; but I understand, that if there be one individual above all the rest of the world alive to the Protestant interests it is the person who framed this clause. The learned lord, however, seemed resolved to make a grand discovery—to find out some defect which nobody else could see—to have eyes where other folks are blind; and accordingly, taking the bill in hand, he took out, and carefully wiped, his largest magnifiers, and going minutely over every letter, nay, over every comma, he rejoiced, after a long and patient ex
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amination, to make out that the clause in question must have been conceived and brought forth with a design to favour the Roman Catholics. All I can say is, that if there be any thing in the bill, which either advances or retards the Catholic question, I am willing to strike it out; but when the learned lord talks of artifice, I cannot guess what sort of tests and securities he would have. Can there be a safer course than employing an individual to draw the clause, who was as strongly opposed to the Catholics as the learned lord himself? The effect may be what the learned lord contends; but that any artifice was used to accomplish it, is not very credible. The object of the learned lord, as far as I can collect it, is, that the whole of the preamble of the Act of Union shall be inserted in this bill; and, recollecting that he has spent so much of his laborious life in discussions on the constitution of the country in Church and State, and in declamations to prove that they are about to be subverted, the words of his amendment sound very dreadful indeed. But the real question is, what are the statutes and acts intended by the Act of Union? The learned lord tells us, that the Test-act is one of them, and he defies any man to say that it is not a statute for the establishment and preservation of the Church. He so considers it; but the question, give me leave to say, is not what he considers it; but what it was considered by the great men who were concerned in framing and passing the Act of Union. Did they think that the Test-act was for the establishment and preservation of the Church? I have learnt in the school of the noble lord himself, to attach prodigious importance to the preambles of statutes, and in the course of this very discussion he has displayed his usual learning and acuteness upon that subject. He professed himself shocked in the extreme at the jejuneness of the preamble as it once stood—"Whereas, it is expedient," and objected reasonably enough for a lawyer, that it was so short, clear, and direct. It gave him no opportunity for the display of his talents; and he therefore complained of it, as a sportsman does of a wood, because he could find no game in it—he found nothing to hunt—nothing upon which he could exercise his ingenuity; it was a preamble which presented no difficulties, and was addressed to the common sense of

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mankind. But I will apply the learned lord's own doctrine to the preamble of the Test-act. First, I assert, that the title and preamble of the bill not only do not say, that it is for the establishment and preservation of the Church, but they state something quite to the contrary; the object of the bill is declared to be "to prevent danger from popish recusants, and to quiet the minds of his majesty's subjects." Let me ask, too, is the learned lord so little read in the history of those times, as not to know, that the individuals who promoted the Union, were the very persons most anxious to repeal the Test-act? Is he not aware that the Whigs of that day wanted to get rid of the Test-act, or to do what was equivalent—to admit Protestant Dissenters within the pale of the Church? Therefore I have a right to maintain, that these recited acts are not what the learned lord describes them to be; namely, passed for the establishment and preservation of the Church. Neither in the preamble of the Act of Union, of which he is so fond, are they alluded to for that purpose. It was actually moved that they should be inserted in the Act of Union, and the motion was rejected; so that we may assert, that the opinion of parliament was against the opinion of the learned lord. But there are certain statutes mentioned in the Act of Union—two old statutes are introduced as acts for the establishment and preservation of the Church, and they are made perpetual.
Lord Eldon: Those two statutes "and other acts" are mentioned.
Lord Holland. It is true the words "and other acts" are used, but those acts are not specified; and, unless the learned lord, as a lawyer and an historian, can satisfy the House that those who passed the Test-act and the Union did consider it in that light, his whole argument falls to the ground, and is not worth a rush. He founds himself upon this:—"I will prove that the Test-act docs establish and preserve the Church." That is the point at issue, and the learned lord must make it out not merely by emoting the Test-act or the Act of Union, but by sound argument. For these reasons I submit, that he has made out no case for the admission of his amendment; and I have no hesitation in saying, that it is clear to every man's understanding, not legally and technically, but practically, that if you pass this act with the amendment in this part
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of the bill, and in the Declaration and if no Indemnity bill be hereafter passed, including an indemnity for not taking the Declaration, you place the Roman Catholics in a situation more disadvantageous than that in which they now stand. I appeal therefore to the candour of the enemies of the Roman Catholics whether they will, by a side-wind, and in an act of boon and indulgence to others, impose upon them a new and severe hardship? I am sure that their sense of justice and candour will prevent the infliction of this penalty, and I sit down perfectly satisfied that this House will not consent to change the preamble and the Declaration in the manner suggested by the learned lord.
The Lord Chancellorsaid, it did not appear to him that there was any thing in the preamble of the bill, or in the bill itself, that called for the amendment of his learned friend. He alluded to the introduction of the preamble to the Act of Union; and he thought it right to state this, because he felt disposed to concur with his learned friend on another point; namely, the introduction of the word "Protestant." The present question related solely to the Corporation act; and the matter to be considered was, whether it would not be necessary, at a future period, as his learned friend intended, to move that the word "Protestant" should be inserted in the provisions of this bill; and whether, if that were not done, Roman Catholics might not be placed in the government of corporations in this kingdom. By the Corporation act, persons who were admitted to have a share in the government of corporations were obliged to take the Oath of Supremacy and the Sacramental Test. Now, if they abrogated the Sacramental Test, all that such persons would have to take was the Oath of Supremacy. If, then, noble lords were of opinion, that the Oath of Supremacy was not alone sufficient, it followed, as a consequence, if they did not agree to the amendment at a future period, that Roman Catholics, if they took the Oath of Supremacy, might take situations in corporate bodies. The question was, whether the Oath of Supremacy alone was or was not a sufficient defence against the admission of Roman Catholics into corporations? His learned friend had, over and over again, stated, that, it was not a sufficient defence. If that position were correct, then he would say, that, so far

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as related to applications for admission into corporations, it might be necessary to insert the word "Protestant," to guard against the possibility of the event to which he had referred.
Their lordships then divided upon the earl of Eldon's amendment; Contents 31; Not-Contents 71; Majority against the amendment 40. After a short conversation, the further consideration of the report was postponed till to-morrow.

PROTEST.
The following Protest against the introduction of the words "on the true faith of a Christian" in the Declaration, was entered on the Journals.
"Dissentient.

1. "Because—The introduction of the words 'upon the true faith of a Christian' implies an opinion in which I cannot con scientiously concur, namely, that a particular faith in matters of religion is necessary to the proper discharge of duties purely political or temporal.

2. "Because—It appears from two acts, the one passed in the 10th year of George 1st. cap. 4, and the other in the 15th year of George 2nd. cap. 7, that the words upon the faith of a Christian' occurring in the Oath of Abjuration have been dispensed with in cases which were found not to be within the spirit and scope of the original law—and it seems to me inexpedient to introduce unnecessarily into a Declaration of this nature a form of words which experience has shewn may produce effects not contemplated by those who imposed it.

(Signed) "VASSALL HOLLAND."