§ Order of the Day for the House to be put into Committee, read.
The Bishop of London
objected to the Bill, which, he said, was a measure which would go to no less than the establishment of the supremacy of the Pope in this country, and the repeal of some thirty Acts of Parliament, affecting the most important interests of this country, as well as the prerogatives of the Crown, and the religion of the kingdom. Some of the provisions of this Bill would interfere with the Act of Uniformity, and others with more recent enactments, including the great settlement of the question between 1164 their Roman Catholic and Protestant fellow subjects. It would go to repeal those securities—though nominal, certainly, it might be said they were — which were taken on the concession that was recently made to the Roman Catholics; and to this he, for one, was not prepared to consent. What he had chiefly risen for, however, was to protest against their Lordships going into Committee, or, indeed, legislating at all with regard to this Bill, in the necessary absence, at the present moment, of those who were the natural and legally constituted guardians of the religion of the eountry. He well knew that the feeling of the country was in that unsettled state on this subject, that, if their Lordships took upon themselves to legislate upon it at this period of the Session, and in the absence of his right rev. Brethren, the Church of England would have great cause to complain. He understood that it was the intention of the noble Lord to strike out a considerable portion of the provisions of this Bill, and only to carry such parts of it as the Government and the noble Lord (the Chancellor) did not object to. But he thought that, under the circumstances he had stated, discussion upon it at the present moment would be objectionable and improper, and he was persuaded that the country, if they did, would hear it with surprise and astonishment. He did did not go so far as to say that all the enactments in this measure were dangerous to the Church, but at the same time, holding the opinions which he entertained upon other portions of it, he begged to move as an Amendment, that their Lordships resolve themselves into Committee upon it that day three months.
§ [Amendment moved to leave out "now" and insert "this day three months."]
§ Lord Beaumont
said, he entirely acquitted the rev. Prelate of being influenced by personal feelings on the present occasion, but he (Lord Beaumont) must beg leave to state his astonishment at a rev. Prelate being found in this the nineteenth century, willing or ready to defend such enactments as the Bill was intended to repeal. Had the rev. Prelate looked into those Statutes, had he studied their character, was he aware of the penalties they inflicted, or the deeds both of commission and omission which they made capital crimes? If he had examined those Acts, if he spoke with any knowledge of the subject, he (Lord Beaumont) would not only express his surprise but his indigna- 1165 tion at hearing a Member of their Lordships' House declare in his place, that he thought it still necessary to keep these bitter enactments in force against so large a portion of his fellow subjects. What, was the rev. Prelate still anxious in these days of mutual toleration to keep the axe and the sword still suspended over the heads of his Roman Catholic countrymen? Did he still wish that the law of præmunire should be in force against them, and that for the most ordinary acts of their religion, they should be liable to the penalties of high treason. Was the rev. Prelate really aware of how these numerous Acts operated, or what inducement was held out to put them in execution? He (Lord Beaumont) would state to the House, albeit briefly, how the case stood. Under the combined operation of the Penal and Toleration Acts, the Roman Catholics of this realm were divided into two distinct classes—the one qualified, the other unqualified—the qualified class were such as had taken the oaths prescribed by the Toleration Acts or the oath substituted in place of such oaths by the Emancipation Act? The unqualified were those who had not taken the oaths, or not complied with each and every condition required by the 18th and 32nd of George III. The former were exempt from the direct operation of the Penal Statutes recited in the Bill, but suffered indirectly from them, as he (Lord Beaumont) would presently show. The latter, namely, the unqualified, stood in a very different position:—against them the whole of these Penal Acts were in force, and there was nothing to prevent any evil-minded person from proceeding under them against any unqualified Roman Catholic in the realm, however high his character or position might be. Their Lordships would be surprised when he stated the comparative numbers of the qualified and unqualified; but he (Lord Beaumont) felt that he was not exaggerating the case when he said that not more than one in a hundred had taker the oaths prescribed. Ninety-nine in even hundred Roman Catholics were liable to be dragged before the tribunals of this country, and there tried for offences, which the law punished with the utmost severity, but which were hourly committed in open day by every Roman Catholic; they were at the mercy of informers;—they had no legal status, but were in the eye of the law no more than aliens or public enemies. The daily acts of their religion came within the compass of a præmunire, and 1166 some of the highest members of the British aristocracy were subject under these Statutes to the most galling insults. Members of ancient families, who in loyalty and patriotism stood second to none in the kingdom, were designated by these Statutes as traitors to their Sovereign, and foes to the Constitution. Did the rev. Prelate deem it advisable that such a state of the law, should be continued, or that the heavy pains and penalties of former and more dangerous times should be still held in terrorem over the heads of loyal Catholics of the present day? Did he consider ii necessary either for the protection of the establishment or the interests of religion? Were these disgusting acts the bulwarks of the Church, and necessary supports of the Protestant Faith? Was the influence of Rome and the power of the Pope so great in Europe, that these fortifications were necessary to keep this Protestant country secure from a successful invasion? No, my Lords (the noble Lord continued) I will not accuse the rev. Prelate of entertaining such fond and ridiculous fears. The time has been, I confess, when similar alarms were neither ill-founded nor uncommon: there was a period in our history when the machinations of the Jesuits, the conspiracies of the nobles, and the general want of loyalty amongst the Catholics of England, made such laws as these not only excusable but advisable. The intrigues of Rome had then their ramifications in this country, and foreign plots found willing instruments even amongst the wealthy members of the Catholic body. But that state of things has gone by—those times are long past. The position of parties is changed not only in England but in the rest of Europe. Where are now the plots and counter-plots of Catholics to upset the constitution? Where are the deep-laid conspiracies of Jesuits and their pupils to establish a foreign supremacy? Will the rev. Prelate point out one single dark and treasonable design which could justify such enactments in the present day? My Lords, he cannot. Not one of your Lordships would venture to propose such enactments in these times: how can you then justify their continuance on the Statute Book? They are either good or bad: if they are good, they ought to be enforced; if they are bad, they ought to be repealed. Justify them by acting up to them, or disown them by repealing them. Do not imagine that they are dead letters; they may not directly, 1167 but they do indirectly work to the injury of Roman Catholics. If, for instance in a charitable donation or bequest for religious purposes, any of the parties concerned therein, testator, donor, trustee, or legatee, chance to be an unqualified person, the whole is vitiated and void. Recent judgments in the courts below, might be quoted as illustrations of the confused state of the law in respect to charitable donations, where the parties are still exposed to the Penal Acts, or the object of the charity is implied by them to be a superstitions use. But it is not so much the indirect injury they do, that I complain of, as the direct annoyance they may possibly give. Let it not be said that these Statutes are for ever laid upon the shelf, and not liable to be again taken down. The experience of the present Session should convince us that there are in the world a sufficient number of ill-conditioned people, who would for trifling rewards, commence proceedings under obsolete Acts, and render it necessary for the Legislature to adopt the inconvenient course of passing Indemnity Bills. This has been the case in respect to the now well-known Gaming Laws; this has also occurred in the forestalling and similar Acts which have recently been repealed by a Bill of my noble Friends; not two days since, you were told of proceedings under an obsolete Act which rendered the Butter and Cheese Bill necessary. Why then, my Lords should you fancy that these old Statutes will be allowed to slumber on their shelves, and that no Angelo will he found to awake the enrolled penalties, and put the drowsy and neglected Acts freshly on us? But whether they are put in force or not, there they are, a disgrace to the Statute Book, a blot on the history of the Legislature and the grounds for imputations of intolerance against the Established Church. In this respect I beg of the right rev. Prelate to reconsider the subject, and weigh well the impression the world will receive of Protestant toleration, when they hear that he on behalf of the Church came down to the Parliament, and in his place implored the House of Lords, to retain on the Statute Book these cruel and revolting enactments. I would not remove one single proof which really supported the Church, for I believe that the Protestant Church has generally been friendly and of use to the liberties of the subject; but these stringent laws are in the present state of society rather detrimental than advantageous to the interests of the Estab- 1168 lishment. I believe that they furnish grounds for attack against it, and are often quoted to inspire horror of its temporal policy. But I will be fair in my dealings with the rev. Prelate's objections, and promise him, that if he can establish clearly the utility of one of these Acts in respect to the Church, I will strike it out of my Bill, and leave it on the Statute Book. I will go further; the Bill has been maturely considered by my noble and learned Friend on the Woolsack, and if he assures me that one of these laws is necessary to the defence of the religion of the State, I will bow my humble opinion to his superior judgment, and that law shall remain unrepealed. Can I act more candidly—can I act more justly? I cannot suppose that the rev. Prelate, or indeed any of your Lordships have been so indifferent to the social revolution which is always going on, as to have totally disregarded passing events in the north of Italy and the whole of Germany. I cannot imagine you to be insensible of the gradual decrease of the temporal power and political influence which the Papal See in its day of grandeur formerly exercised in those regions. The arm which once overawed Europe, is annually shrinking, and its temporal sway is now scarcely felt beyond the frontiers of the Pontiff's own dominions. Yet these countries neither employed weapons such as these Acts to repel the Roman Propaganda, nor fortify themselves with a line of Penal Statutes in the dread of an invasion. The result has been that in those parts of the Continent where the Governments have not insulted liberty of conscience by Penal Laws, persons of both creeds live together in peace, amity, and good-fellowship. There are fewer Sectarian animosities, and fewer polemical controversies. Let not this experience be thrown away nor this example set in vain; but by removing what is offensive to the feelings of a large portion of the community, deprive the discontented of their stock-in-hand of complaints. The rev. Prelate accuses me of taking the House by surprise, and not allowing sufficient time for the subject to be considered—but what is the true history of this Bill? I presented it early in May, I immediately on its being printed, called the attention of the noble and learned Lord on the Woolsack to it: my noble and learned Friend wished it to be referred to the Criminal Law Commissioners, who though they had already gone through the 1169 subject, again reconsidered it, and again reported on it to my noble and learned Friend. My noble and learned Friend then laid it before several of the rev. Bench, and I was informed that their attention was particularly called by the noble Lord on the Woolsack to the provisions of the Bill. I have never let the subject rest since I first introduced it, but have troubled my noble and learned Friend early and late, in order that he might not say he was taken by surprise, when I determined to proceed with the Bill. What becomes then of the complaint of the rev. Prelate? The matter is not new—the question of repealing these Statutes has long attracted attention—their continuance on our Statute Book, was considered a disgrace to society by Sir William Blackstone. His recommendation to revise them, was given more than a century ago, and has the violence of religious fanaticism, or the inclination to establish a foreign supremacy advanced or retrograded in the lapse of time which has intervened since Sir William Blackstone wrote his opinion of these severe laws, and the date when the Criminal Law Commissioners quoted that learned authority in support of their own convictions. So powerful an expression, and so conclusive in its argument this document appears to me to be, that I cannot refrain from imitating the example of the Commissioners, and quoting it at length to the House.This is a short summary of the laws against the Papists under their three several Clauses of persons professing the Popish religion, Popish recusant convicts, and Popish priests; of which the President Montesquieu observes, that they are so rigorous, though not professedly of the sanguinary kind, that they do all the hurt that can possibly be done in cold blood.But in answer to this it may be observed (what foreigners who only judge from our Statute Book, are not fully apprised of) that these laws are seldom exerted to their utmost rigour, and indeed if they were, it would be very difficult to excuse them. For they are rather to be accounted for from their history and the urgency of the times which produced them than to be approved (upon a cool review) as a standing system of law. The restless machinations of the Jesuits during the reign of Elizabeth, the turbulence and uneasiness of the Papists under the new religious establishment, and the boldness of their hopes and wishes for the succession of the 1170 Queen of Scots, obliged the Parliament to counteract so dangerous a spirit by laws of a great and perhaps then necessary severity. The powder treason in the succeeding reign, struck a panic into James I., which operated in different ways. It occasioned the enacting of new laws against the Papists, but deterred him from putting them in execution. The intrigues of Queen Henrietta, in the reign of Charles I., the prospect of a Popish succession in that of Charles II., the assassination plot in the reign of King William, and the avowed claim of a Popish Pretender to the Crown in that and subsequent reigns will account for the extension of these penalties at those several periods of our history. But if a time should ever arrive, and perhaps it is not very distant when all fears of a Pretender shall have vanished, and the power and influence of the Pope shall become feeble, ridiculous, and despicable, not only in England but in every kingdom of Europe, it probably would not then be amiss to review and soften these rigorous edicts, at least till the evil principles of the Roman Catholics called again upon the Legislature to renew them, for it ought not to be left in the breast of every merciless bigot to draw down the vengeance of these occasional laws upon inoffensive, though mistaken subjects, in opposition to the lenient inclinations of the civil magistrate, and to the destruction of every principle of toleration and religious liberty. After such language as this, which I have read to your Lordships, it would be presumption to add any further remarks of my own.
The Bishop of London
observed, that the noble Lord had replied to a speech which he had probably supposed would have been made, rather than to one which had been made. He did not mean to say that it would not be desirable to repeal some of these laws, for he went so far as to say, that he was of opinion that some of them might be safely repealed; but at the same time he thought, that such a change in the law required great consideration, and ought to emanate from the Government and not from any private quarter. He also objected to the Bill on the ground of the time at which it had been brought forward. He objected to such a measure being brought forward at nearly the close of the Session, when it was impossible it could receive that attention in the other House which its importance required, and, above all, he objected to its being brought 1171 forward when so few of his right reverend brethren were present, to whom the guardianship of the Church was more particularly intrusted. He denied that any practical inconvenience could arise from letting the matter stand over until next year, and during the meantime the attention of the Government might be directed to the subject. It was notorious that these laws were, in point of fact, obsolete, and no attempt had been made for the last sixty years to put them in force, and there was not the slightest probability that any such attempt would be made.
The Lord Chancellor
believed that the House would recollect, that he stated on a former occasion, that the Criminal Law would undergo the consideration and revision of the Government during the recess, with a view to make some proposition with respect to its consolidation next year. On this ground he had recommended his noble Friend not to proceed with this Bill; but as his noble Friend was unwilling to do so, he (the Lord Chancellor) requested to have an opportunity of considering the Bill, and then referred it to the Criminal Law Commissioners. Those gentlemen revised the Bill, and they struck out several clauses, and introduced certain alterations, but most of the Bill remained. He had afterwards referred the Bill to a gentleman in the confidence of himself and the Government, who, on consideration, did not think that it was desirable, or that it was expedient, to strike out so much as the Commissioners recommended. He had then asked the right rev. Prelate to name a person in the confidence of the Church to whom the Bill might be referred, but the right rev. Prelate replied, that it was too late to give an opinion on it during that Session. He then told the right rev. Prelate, that he would consent to strike out any Clause about which any doubt was entertained. Some of the old laws, which it was proposed in this Bill to repeal, were of the most severe character, and of which he was sure that the right rev. Prelate would not approve. For instance, by an Act of Elizabeth it was enacted, that any one who disputed the Queen's supremacy as head of the Church, for the first offence was liable to punishment for a misdemeanor, with fine and imprisonment; for the second offence was guilty of felony, and was liable to all the punishment of præmunire; and if guilty of a third offence, he was to be adjudged 1172 guilty of high treason. Now, in the alterations which he proposed in the Bill, he left in the misdemeanor for certain matters contained in the Act, and struck out felony and high treason. He was quite sure, when the alterations which he proposed to introduce were made in the Bill, that there was not a single Clause in it which could be objected to. With respect to the complaint as to the late period at which it had been brought forward, he must at once admit that it was ascribable to himself, for the matter in question was a complicated subject, and he had been obliged to consult several persons. He would suggest that the Amendments which he recommended should be introduced at once into the Bill, and that it should be reprinted, so that the provisions of the Bill might be made known both in and out of Parliament. If this course was adopted, he felt assured that all parties would regard this as a judicious and moderate measure.
suggested that the Bill should be committed pro formâ, so as to introduce the alterations, and to be reprinted without delay. The right hon. Prelate would then be able to consider and examine the subject, and he (Lord Campbell) felt assured that he would not entertain the slightest objection to the Bill. It was quite clear that many Acts, which it was the object of this Bill to repeal, were absolutely disgraceful to the Statute Book, and he was sure that the right rev. Prelate would not wish them to remain in that Book if he was aware of their nature. Many of these Acts had been lost sight of, and if any informer should happen to get hold of them, he might commence an enormous number of qui tam actions. He objected to the introduction of Bills to stop actions in Courts of Law already commenced, and to obviate this it was the duty of Parliament to repeal such laws, as they were disgraceful to the Statute Book.
The Earl of Wicklow
thought that there had been a general understanding that the Bill, as amended by the noble and learned Lord on the Woolsack, was to pass into a law. He therefore deeply regretted the opposition which had been manifested by the right rev. Prelate. He believed that the Bill, if it passed, would give great satisfaction to the Catholic body both in this country and Ireland; and he was sure that the measure would be attended with 1173 none of those evils which the right rev. Prelate anticipated. It appeared to him, that the reasons assigned by the right rev. Prelate for opposing this measure were most extraordinary. If a measure was to be opposed and rejected in that House because it was brought forward in July, it would have the effect of almost entirely putting a stop to public business. It should be remembered that Parliament sat in February, and until July hardly any Bills were sent up to that House. Every Bill might be opposed on this ground, and there would be an end of all legislation. The right rev. Prelate also objected to the Bill on the ground that his brethren were out of town. He was aware, that in the early part of the Session they were absent, necessarily attending their visitations, but there was nothing of the kind now, and it was their duty, as much as that of any other noble Lords, to attend in that House.
The Bishop of London
observed, that his right rev. brethren were absent attending to more important duties than being in that House. He should press his opposition to the Motion.
The Lord Chancellor
thought that it was absolutely necessary for his own justification, that the Bill, as amended, should be committed, for the purpose of being reprinted. The right rev. Prelate would then, at a subsequent period, have every opportunity of moving that it be committed this day six months.
The Bishop of London
said, that after what had fallen from the noble and learned Lord, he would not then persist in his opposition.
§ On question, That "now" stand part of the Motion? resolved in the affirmative.
§ House in Committee.