The LORD CHANCELLOR
, in moving the Second Reading of the Religious Opinions Relief Bill, said, he wished briefly to state to their Lordships the circumstances under which the measure originated. A noble Lord (Lord Beaumont), in the Session of 1844, introduced a Bill for the purpose of repealing several Acts of Parliament imposing penalties and other disabilities upon Her Majesty's Roman Catholic subjects. The Acts of Parliament, and the clauses of Acts of Parliament, which it was proposed by that noble Lord to repeal were so numerous, and the subject itself was so complicated, that he (the Lord Chancellor), on the part of Her Majesty's Government, proposed to the noble Lord to transfer the Bill into his hands, he (the Lord Chancellor) undertaking to make inquiry into the subject, and to bring forward such a measure as he thought might properly and safely be passed into law. The noble Lord acceded to his request; and he (the Lord Chancellor) accordingly referred the Bill to the Criminal Law Commissioners, requesting them, on the part of Her Majesty's Government, to report upon the subject. When the Commissioners had made their Report, the Session being considerably advanced, he (the Lord Chancellor) was pressed by the noble Lord to bring in a Bill upon the subject; and, as he found it impossible at that time thoroughly to investigate the whole subject, he selected those Acts or parts of Acts which were most objectionable, and to the repeal of which he thought no sound objection could be made. Accordingly, he introduced a Bill which met with very slight opposition in that House, and which was passed unanimously by the other House of Parliament. That, however, was considered by himself, and he had so stated it at the time, to be an imperfect measure. He then pledged himself to their Lordships that he would refer the whole question, not only as it related to Her Majesty's Roman Catholic subjects, but to other persons dissenting from the doctrines of the Church of England, to the Criminal Law Commissioners, and that he would bring in a Bill founded upon their Report. In pursuance of that pledge he referred the whole subject to the Criminal Law Commissioners, 1253 at the head of whom was the late Chief Justice of India, Sir Edward Ryan. They investigated the subject, and produced a very learned, elaborate, and able Report, which had been laid upon their Lordships' Table, and which he had no doubt many of their Lordships had attentively considered. He requested the Criminal Law Commissioners also to frame and prepare a Bill founded upon their Report; they complied with his request, and produced a Bill, a copy of which was also laid upon their Lordships' Table. The second Bill formed a part of the Bill to which he now referred. He had thought it prudent to divide the Bill into two, for reasons which he would shortly state. One part of it related to oaths to be taken by persons dissenting from the doctrines of the Church of England, and the other part to those disabilities under which such persons rested; and it was that which formed the subject of the present Bill. He considered there might be more difficulty and more doubt with regard to the former part of that Bill, so framed by the Commissioners, than with regard to the latter part; and as he was very desirous that the present Bill relating to disabilities should pass into a law, he thought it much better to bring it forward by itself. It was with this view that he had reduced the Bill into its present shape and compass. This then was its history. It related, he believed, to more than thirty Acts of Parliament, and parts of Acts of Parliament, imposing penalties upon different classes of Her Majesty's subjects. As far as related to a great proportion of the Acts of Parliament referred to in this Bill, there could be no sound objection to their repeal. He laid down that as a position which in the result would not be controverted. It was possible, however, there might be some doubts and difficulties with regard to repealing some of those measures. It might be considered proper that some of them should not be repealed. What was the course which their Lordships, under such circumstances, would think ought to be pursued? Their Lordships would, of course, allow the Bill to be read the second time, and when it went into Committee the particular measures wouid properly come under consideration. He was anxious to state this, in order that their Lordships might be in full possession of the case. If they concurred with him there would be no difficulty at this stage; and with the utmost candour 1254 and with the utmost desire to give satisfaction, he would consider any objection that might be made in Committee to particular parts of the Bill. It would be his duty now, which he should perform as plainly as possible, to run through the Acts of Parliament, or parts of Acts of Parliament, which it was proposed to repeal. Their Lordships would find, upon looking at the Bill, that those different Acts of Parliament were arranged in the order of their dates. He should consider them in the same way as far as was possible, consistent with the nature of the subjects to which they applied. The first Act mentioned in the Bill related to persons of the Jewish persuasion. On this subject there were two Acts—one the 53rd Henry III., and the other the 18th Edward I. As to the first of these Acts doubts had been entertained whether it was an Act or an Ordinance—whether it was a mere Ordinance by the King in Council, or whether it was an Act passed under the authority of the Legislature. It was not his intention to enter into that discussion; he would only state, as the result of the inquiries he had made, that he was satisfied it was an Act of Parliament, and he founded his opinions on this consideration, that at a very early period after it had been passed, it appeared to have been treated as an Act of Parliament in two instances in our courts, the records of which still remained. By the provisions of this Act of Parliament, persons of the Jewish persuasion were prohibited from holding lands. They were allowed to occupy houses and to possess houses for their own habitations, but they were not permitted to hold lands. He did not mean to enter into the controversy, whether that was or was not law at the present day. About the middle of the last century that question was the subject of investigation after the repeal of the Jews' Bill; and Lord Temple, in their Lordships' House, requested that the Judges might be summoned for the purpose of giving their opinion upon the subject. Noble Lords of that day, however, were of opinion that the House could not call upon the Judges to give their opinion, because no Bill was before the House, and no proceedings pending to justify them in calling for it. No opinion, therefore, was given at that time; but in consequence of the doubts then entertained, the opinions of very eminent lawyers were taken upon the subject, and they generally concurred that there was no prohibition against persons of the Jewish 1255 persuasion, only as to land. It was proper he should remind their Lordships that this particular statute was not then alluded to; in fact, it was not known, and it was not then printed in the Statutes: it was only in the present century that its authenticity had been established beyond a doubt. Doubts consequently had been previously entertained, but there could be no question of it now; and their Lordships would agree with him that it was an Act of Parliament which ought to be repealed. The next Act of Parliament to which he should refer was the Act of Edward. That Act was still in force. It was one that was degrading to persons of the Jewish persuasion; it subjected them to many indignities. Among others, they were required to wear badges denoting their religious persuasion. It defined the size and form and all particulars of those badges, which badges were to be worn by persons both of the male and female sex. Could their Lordships have any doubt whatever that this Act ought to be repealed, that it ought no longer to disgrace the Statute-book? Could any person entertain the smallest particle of a doubt upon such a question? He had thus, as far as related to these two Acts, shown their Lordships that they ought to allow the Bill to be read the second time. The next Act to which he would call attention was the Statute of the 5th and 6th Edward VI.; but he could not properly treat the subject of that Statute without also referring to the Statute of Elizabeth and the Statute of Charles II. upon the same subject. A Form of Prayer was settled in the early part of the reign of Edward VI. In the 5th and 6th years of that Sovereign that Form of Common Prayer was amended and altered; and an Act of Parliament was passed establishing that amended Form as the Form of Prayer which was to be used in all churches and chapels in the kingdom; and certain penalties for a departure from it, to which he should advert, were introduced into that Act. That Form of Prayer was afterwards altered, in the 1st year of Elizabeth. The penalties were then continued, and further penalties were added. Everybody knew that in the 13th and 14th years of Charles II. the Form of Prayer was again altered—not materially, but in some circumstances; and the Act of Parliament, which required the new Form of Common Prayer to be used in all churches and chapels, revived or continued all the previous penalties applicable to the former Forms of Common Prayer. To a 1256 few of those penalties he should shortly advert. The Act prohibited any person from frequenting any place of worship where any Form of Prayer was used different from the Form of Common Prayer mentioned in the Statute; and the penalties were, for the first offence, six months' imprisonment; for the second offence, a year's imprisonment; for the third offence, imprisonment for life, he believed, or, at all events, for a much longer period than for the second offence. These penalties were still in existence. In the Session before last their Lordships relieved the Roman Catholics from these penalties, wisely, in his opinion; but the same reason which led their Lordships to repeal them, as far as related to Roman Catholics, would equally apply to all Dissenters. How was it possible they could still continue these penalties? They tolerated religious dissent—they tolerated the Presbyterian form of worship, for instance, in this country—they allowed that form of worship; and yet they said, that the person professing that form of worship, and adhering to the Form of Prayer incident to it, should, for the first offence suffer a penalty of six months' imprisonment; for the second offence, one year's imprisonment; and for the third offence, imprisonment for life, or for some long period. The same argument applied, until the Session before last, to persons professing the Roman Catholic religion, when it was repealed as far as the professors of that religion were concerned. But, what a system of legislation was it—what a correct system of law was it, to continue the penalty to one form of religious worship, while it was repealed as to another? It was also applicable to persons of the Jewish persuasion; and they, it should be recollected, could not get rid of the penalties by taking any form of oath whatever, as it might be said Protestant Dissenters could do; for they did not come within the provisions of the Act of Toleration. But that was not all. Any member of the Established Church who went into a dissenting meeting-house, or that was present at any ceremony of the Roman Catholic Church, infringed this Act of Parliament, and incurred all these penalties; therefore, he trusted that their Lordships would be of opinion that this part of the Statute of Edward VI. ought to be repealed. The second part of that Act, to which he would refer, was that which required every person to attend the service of the Church in his parish every 1257 Sunday. If he did not do so, he became subject to ecclesiastical censure by the Statute of Edward, and by the Statute of Elizabeth to a pecuniary penalty. These were the foundations of the Statutes of Recusancy—those harsh and abominable statutes to which he would have occasion hereafter to refer. This part of the Statute did not apply to Roman Catholics, but it did apply to other denominations; and, without repeating his former arguments, he trusted their Lordships would agree with him that this part of the Statute ought also to be repealed. Whether they would repeal it as far as related to the members of their own Church (the Church of England) was another question. A right rev. Prelate, for whose opinion and character he entertained the highest respect, was disposed to relax this Act as far as the pecuniary penalties were concerned; but he thought that the censure of the Church ought to be continued as far as persons of their own communion were concerned. But, during the investigations before the Commission on this subject, it had been ascertained that no proceedings had taken place under this Act for 150 years; and if such were the case, and if the Act for that period had been allowed to remain a dead letter, he was sure their Lordships would agree with him that the Acts of Parliament which authorized such penalties ought to be repealed. That, however, would be a question for consideration in Committee. He next came to another Act of Parliament, respecting which he believed a greater difference of opinion was likely to result. He alluded to the Statute of Elizabeth, known as the Act of Supremacy. He begged, on this subject to be clearly and distinctly understood; for it was a subject of very great importance. The Act of Parliament declared and enacted the supremacy of the Queen in matters ecclesiastical and spiritual in the strongest, the most ample, and the most effectual terms, and in that declaration he most entirely concurred; but it afterwards provided that any person who maintained the ecclesiastical and spiritual authority of the See of Rome should be subject to certain penalties. Now, he proposed to repeal that latter clause; but, in the first place, he would call their Lordships' attention to the penalties decreed under it. Any person maintaining the authority of the See of Rome in matters spiritual and ecclesiastical, for the first offence forfeited all his personal property, for the second offence 1258 he was declared guilty of premunire, and for the third offence he was considered as guilty of the crime of high treason, and subject to the punishments awarded for that offence. Now, these were monstrous penalties. The two latter, as far as related to their Roman Catholic brethren in this country, had been repealed; but the former, referring to the forfeiture of all personal property, was still unrepealed. Nay, more, as far as related to Ireland—for the Irish Bill corresponded with the English Bill—they also still remained. He would propose that these penalties should be repealed. They applied only to Roman Catholics, for no other dissenting body cared about the subject. Now they tolerated the Roman Catholic religion. They knew what the opinions of Roman Catholics were, and they knew that it was an essential part of their religious creed to maintain the ecclesiastical and spiritual supremacy of the Pope. This was one of the fundamental principles of their religion; and how inconsistent was it to say that these persons, who were allowed to perform the duties of their religion, should, in the conscientious discharge of that duty, incur heavy penalties! Could anybody attempt to maintain the justice of such a system as that? They had already recognized this principle in striking out the words "ecclesiastical and spiritual" in the act referring to Roman Catholics; and were they at the same time to continue the penalty? Could any person say, that by repealing those penalties they repealed the supremacy? For the supremacy of the Sovereign in matters ecclesiastical and spiritual he entertained the highest possible and the most sincere respect; but he at the same time thought it to be the most extravagant and untenable opinion that could by possibility be maintained, to allege that these penalties were any part of that supremacy. He would state a case in point. An Act of Parliament might grant a right of tithe to the Church of England. They might impose a penalty for questioning that right; and yet, though they afterwards repealed the penalty, the right would remain. In the same manner they had repealed the penalties imposed by the Act of the 5th of Elizabeth, and yet they did not destroy the right maintained by that Statute. He should protest against the supremacy of the Crown being confined to this view. There was no man who ever turned his attention to the subject who placed it on so narrow a foundation. 1259 It was a part of the Constitution of this country, because the supremacy of the Crown in ecclesiastical matters was part of the common law of the realm. It had been declared to be so over and over again, and the sagest professors of the law were of this opinion. It had been set forth in ancient Acts of Parliament; and in the reign of Henry VIII. this ancient doctrine had been confirmed. He would now come to the Statute of Elizabeth. In order to show the nature of the supremacy of the Crown in spiritual and ecclesiastical matters, he might refer their Lordships to many authorities; but above all, he would wish to refer them to the case of Cawdrey, reported by Lord Coke, where the matter was most elaborately and ably referred to, considered, and decided. There was nothing technical in it; and if any noble Lord or right rev. Prelate referred to that case he would see the entire subject fully explained. It was said, that as far as related to the ministers of the Established Church, they ought not to entirely repeal these penalties. In that opinion he acquiesced. He did not mean that those precise penalties should apply to every person in holy orders; but he would have no objection that any such person denying or questioning the supremacy of the Sovereign in spiritual or ecclesiastical matters should be subject to the censure of the Church, or even be deprived if it were thought necessary. In order to remove all doubts on this point, he might state that he would have no objection to insert in Committee a proviso that they should, in repealing these penalties, in no way affect other clauses of the Bill, or in any way impair or affect the supremacy of the Sovereign of this country in matters ecclesiastical and religious. Passing by this subject, he would come to the Statute of Charles II., by which any popish recusant convict who should be convicted as such, was subject to the most grievous penalties—to large pecuniary costs, and to disabilities of a most extraordinary kind. Nobody could, he thought, for a moment doubt the propriety of repealing this Statute. A popish recusant convict was a person of the popish religion, who did not regularly repair to his parish church, and who was convicted under the Statute of Elizabeth, which he had before referred to. That was the offence for which these enormous penalties were imposed; and he would defy any person to get up in that House, and to deny the propriety of repealing them. 1260 The next Act of Parliament to which he would beg leave to refer was the Statute of James, by which persons were required to go and attend their parish church on the anniversary of what was called the Gunpowder Plot. There were no penalties in that Act of Parliament; but it was well known that every person who disobeyed the injunction of an Act of Parliament was liable to be indicted for a misdemeanour, and therefore every person who refrained from going to his parish church on that day was liable to be indicted for a misdemeanour. Now, as far as Roman Catholics were concerned, it was impossible to require them to attend the parish church on such occasions; and accordingly, in the Act of 1844 this Statute was repealed, as far as it related to them. It was, however, hardly decent to allow it to remain on the Statute-book. Besides, it still remained applicable to Dissenters, as it had not been abrogated by the Toleration Act, or by the taking of any oaths allowed under that Act; and that Act did not release them from the consequences of a misdemeanour. It was perfectly impossible to enforce it as far as the Dissenters were concerned, and it was also applicable to persons of the Jewish persuasion; but even as regarded members of the Established Church, did any one, he would ask, who attended divine service on that day do so in consequence of the Act of Parliament, or did they ever think of the Act of Parliament or its injunctions at all? How few attended divine service on this day; and was it, he would ask, possible to institute any proceedings against persons of the Church of England, under this Statute, for not attending divine service on this day? Was it not, in fact, as far as it related to persons of the Church of England, an absolute nullity? When, therefore, he asked their Lordships to repeal this Act as far as it related to Dissenters, he would advise them to repeal it altogether, and leave it to the conscience of the public to attend divine service on that day as on other occasions. There was also another Statute to which he wished to refer, and respecting which he thought some doubts would also be entertained. He meant the Act of the 13th of Elizabeth, with respect to importing bulls and writings from the See of Rome. If any person should import any bull, or any document or writing of any description or for any purpose from the Pope of Rome, he was by that Act of Parliament guilty of the offence of high treason, 1261 and liable to execution, and to all the other consequences following from a sentence for that crime. This Statute was passed in consequence of Pope Pius V. having excommunicated Queen Elizabeth, and released her subjects from their allegiance; and of the bull containing that excommunication having been affixed to the gate of the palace of the Bishop of London by a person named Felton, who was executed for the offence. The bull was also posted up in Paris, and excited the indignation of the people in both countries. There was, however, no chance of any such pranks, if he might venture so to call them, being attempted in these days; and therefore the cause of such an enactment could not be said to continue. They tolerated the Catholic prelates, and they knew that these prelates could not carry on their church establishment, or conduct its discipline without holding communication with the Pope of Rome. No Roman Catholic bishop could be created without the authority of a bull from the Pope of Rome; and many of the observances of their church required the same sanction. The moment, therefore, that they sanctioned the observance of the Roman Catholic religion in this country, they by implication allowed the communication prohibited by this Statute, and for which it imposed the penalties of high treason. If the law allowed the doctrines and discipline of the Roman Catholic Church, it should be permitted to be carried on perfectly and properly; and that could not be without such communication. On these grounds he proposed to repeal that Act. But he proposed the repeal of this Statute for other and still stronger reasons. No such statute existed in Scotland, and what was still more remarkable, such a statute had never been passed by the Irish Parliament, though in that country three-fourths of the inhabitants professed the Roman Catholic religion. He knew that many of his noble Friends had been, on the first impression, much staggered at this proposition; but the more they had examined into the question, the more convinced were they of the expediency of the course which he proposed. If their Lordships thought that when the Bill got into Committee the measure might be in some degree modified, provided it could be satisfactorily made out that Roman Catholics would be enabled to do what the law authorized them to do, and to do it effectually, he should have no difficulty in acceding to such a modification. He next 1262 came to the Statute of the 11th and 12th William III., one of the most stringent that had ever been passed against the Roman Catholic religion. By that Act any priest saying mass was subject to imprisonment for life, and any person who seized a priest saying mass was to receive a reward of 100l. Every person of eighteen years of age was required, under that Act, to take certain oaths; and if he did not do so, all his estates were forfeited, and went to his next of kin during his life. There were certain other penalties under that Act, all of which he would, without hesitation, advise their Lordships should be repealed. There was another, an Irish Act, the Act of 2nd Anne, by which any person persuading another to be reconciled to the See of Rome, and any person so reconciled were declared guilty of premunire. Their Lordships knew what the effect of such a sentence was. A person guilty of premunire was placed out of the protection of the law; and before now a question even arose, whether it was lawful to slay a man guilty of premunire, so that in one Act of Parliament a clause had to be inserted, declaring that a person guilty of premunire could not be lawfully slain. He thought their Lordships would bc of opinion that the Act of Anne should be repealed. He was happy to tell the House that he was now coming to the close of his statement. He had endeavoured to state the facts which it was his duty to lay before their Lordships as shortly but as perspicuously as he possibly could. As to schools, he would briefly state that no person was allowed to keep a school without the license of the archbishop or bishop; and no person was even allowed to be a tutor in a private family without the license of the archbishop or bishop of his diocese. This Act was in full force, and was applicable to Roman Catholics and Dissenters. By the Act of the 11th and 12th of William III., no person of the Roman Catholic persuasion was allowed to instruct youth under penalty of imprisonment for life. All these enactments he proposed to repeal. This brought him to the various Statutes of Recusancy which still remained in force. Under these Statutes a person was liable to punishment for abstaining from going to his parish church. It might be said, why take the trouble of repealing Acts of Parliament that were obsolete? But he reminded their Lordships that not more than four or five years ago fourteen or fifteen convictions had taken place under these Statutes of 1263 Recusancy. [Lord BROUGHAM: In 1841.] They were convictions of poor men, and at the time every body said that the Act ought to be repealed. Application had been made at the time to their Lordships on the subject; and the Secretary of State, Sir James Graham, was obliged to interpose, in order to put a stop to such prosecutions. It was, therefore, idle to say that these statutes were virtually repealed, because they might at any time be called into operation by ill-disposed persons, anxious to effect some object of their own. This penalty was applicable to Roman Catholics and Dissenters, as well as to members of the Established Church. But the 29th of Elizabeth went further. According to it, if any person were convicted of not going to church, he should be considered a recusant, and should pay 20l. a month for every month mentioned in the indictment, and not only for the past time, but for the future until he should take the sacrament. If he had any lands, these lands were to be seized for the use of the Sovereign, if the penalties were not paid; and by the Act of the 1st of James I., the Crown had the option to seize the lands in the first instance. To so great an extent was this power exercised in former days, that in one year alone of that reign the revenue received by the Crown, under this Statute, amounted to upwards of 30,000l. Their Lordships might not, therefore, be surprised to find that these Acts had been allowed to remain so long on the Statute-book. The Act applied not only to men, but also to such unhappy married women as were declared guilty of recusancy. A woman so charged and convicted was to be imprisoned, and she could not get out unless she took the sacrament; and if her husband desired to have her liberated, he should pay for it. She was to be imprisoned until her husband consented to pay 10l. a month for the period of her offence, or gave one-third of his lands to the Crown. There never was a more harsh or more absurd system of law than this, and yet these enactments were still on the Statute-book. He proposed that they should be altogether abolished. He had now gone through the principal enactments referred to in the Bill; and any further explanation that any noble Lord might wish to receive on the subject, he would take an opportunity hereafter of giving in Committee. The objection to which the right rev. Prelate, to whom he had before alluded, and some other objections also which were then in his own mind, 1264 would come more properly before their Lordships when they got into Committee on the Bill. All he asked their Lordships to do at present was, to consider the subject calmly and dispassionately; and if they were satisfied that no mischief was likely to result from this measure, then that they should concur with him in the propriety of the repeal of the Statutes to which he had alluded. He begged to move that the Bill be read a second time.
said, he should entirely agree with his noble and learned Friend that no man could get up in that House, and deny that the great bulk of these statutes ought to be entirely swept away, as deforming the constitution, as defacing the Statute-book, and as being virtually obsolete, though not altogether without pernicious vitality, which might at any one moment call them into existence for sinister purposes. He had no doubt whatever that their Lordships would accede to his noble and learned Friend's proposal, and give the Bill a second reading, while the objections to it might be stated and considered in Committee. Nevertheless, as his noble and learned Friend had entered at large into the subject, he thought it would be attended with some convenience if so much of the discussion which should take place in Committee were anticipated now as would prepare noble Lords and his noble and learned Friend for what might hereafter be the main subject for consideration. He entirely agreed with his noble and learned Friend in what he had stated respecting the penalties for recusancy. His noble and learned Friend referred to what had taken place in 1841, and he would defy the wit of man to imagine a stronger case to show the great injury that might result from retaining enactments on the Statute-book of a penal nature, after they had become obsolete from a change of circumstances, than those proceedings; because what passed in that year was sufficient to show that spite, or corrupt views, or other malicious or inexcusable motives, as it were, quickened that dormant snake into a mischievous vitality. The Queen Elizabeth shilling was the object of these prosecutions ostensibly, but not really. Three or four men had been prosecuted for poaching; but in consequence of a clumsy laying of the information the worthy magistrates who presided could not prosecute to a conviction. They, being guardians of the law and of the game, having failed to convict, the accused men would have departed. 1265 "Oh, but," said one of the magistrates, "were you at church last Sunday?" "No." "Or the Sunday before that?" "No." "Or the Sunday before that again?" "No." "Oh, you must pay Queen Elizabeth's shilling then." Thus, as the men could not be convicted of poaching, the magistrates contrived to convict them of recusancy, and they were each sentenced to a penalty which, with costs, amounted to 28s. or 29s. They were poor men, common day labourers, and could not pay the money—they were sent to prison for three or four months, and the families of some of them came upon the parish. He was therefore of opinion that his noble and learned Friend was quite right in seeking for a repeal of these statutes. As their Lordships were aware, nothing could be more abused than the provisions of that Act in the present state of society. It should be recollected that it was not enough for a person to go every Sunday to church, or twice or three times on every Sunday, if worship were offered so often. It must be in his own parish church, or else he remained liable to the penalty. Therefore, nothing more absurd, or less adapted to the present state of society, than this Act of the 29th of Elizabeth and the other recusancy Acts could be conceived. He agreed with what had fallen from his noble and learned Friend with regard to the supremacy as dealt with in the Statute of Elizabeth. No lawyer who considered the subject could say that the repeal of the Acts, as proposed by his noble and learned Friend, would imply anything against the Queen's supremacy. His noble and learned Friend, while he proposed this repeal, intended to make an enactment specially to remove all doubts as to saving her supremacy. He differed, however, with his noble and learned Friend as to one or two points connected with the 13th of Elizabeth. Nothing could be more correct than his description of the circumstances which led to that enactment, and that it arose from a bull from the Pope Pius V. having been sent over here to dethrone the Sovereign, and to absolve her subjects from their allegiance, and which was fixed to the palace of the Bishop of London, to the abhorrence of the English people, and to the residence of the King of France, to the disgust and indignation of that Sovereign. He agreed with his noble and learned Friend that, looking at the case now, the penalties enacted for bringing over bulls or rescripts from the Pope were absurdly severe; but 1266 he was not prepared to go the length of the enactment, which swept away all the penalties, and allowed the throwing open the ports of England, Scotland, and Ireland to all the edicts, all the rescripts, and all general communications in matters ecclesiastical, which at any time might be issued from the Vatican, and which might be addressed—to whom? Why to a very large and important class of Her Majesty's subjects, namely, the Roman Catholic clergy and the Roman Catholic laity of these realms. He would take one distinction, however, on this point. Any penalties against any persons for holding any particular religious opinions, or for any act which was done in setting forth or professing such religious opinions, or for anything which could hamper the faith in which they believed—for the law always assumed that it was impossible for the lawmaker to dive into men's motives for belief—and he held that any penalties for holding such opinions were most unjustifiable, and were unfit to be continued; and, therefore, it was fit and proper that they should be at once swept away. He repeated, however, that they should pause on one point. The object was directed not against a person in this realm for openly holding or expressly uttering certain opinions; but the penalty was directed to prevent a foreign potentate, who assumed to himself supreme jurisdiction in all ecclesiastical matters in all countries, from exercising any authority here. This, be it recollected, was the only potentate that ever put forward such a monstrous pretence; for the Bishop of Rome did not confine his alleged jurisdiction to his own territory, but claimed it over all the world. And this supremacy was not confined to ecclesiastical matters; for one of the predecessors of the present Pope gave half the world to Spain, and the other half to Portugal, while he held not more territory himself than a small portion of Italy; but this potentate—this Bishop of Rome, as he was properly called—still claimed supreme authority in ecclesiastical matters all over the world. He claimed and exercised this not only over his own Italian subjects, but over those priests who were the Queen's subjects, who adopted his religious opinions. This did not alter their allegiance to the Queen, for they were still the Queen's subjects, although they were the Pope's priests. Their flocks also were still Her Majesty's subjects, although they might worship through these priests of the Pope. According to the law the Queen was supreme 1267 in all matters, whether civil or ecclesiastical. This being the case, how could this or any other well-governed country allow that foreign potentate, without let or hindrance, to send over bulls or rescripts? He agreed that the Pope might send over a bull which would be a libel on the Church of England as by law established, or on the Parliament, or the Sovereign of England, and which might be dealt with accordingly. It might be said it was not necessary to have a prohibition for the introduction of such instruments, as the persons publishing them would, if they were libels by law, be liable to criminal prosecution. But the Vatican would not be checked in this way, for they could frame a rescript which might operate most injuriously over the minds of the priests and of their followers, and which was not a libel technically speaking, and the publication of which, therefore, could not be punished—a publication working mischievously throughout the country, and producing the worst results; and yet, unless such publication could be proved to be a libel—either a treasonable, or seditious, or defamatory libel—it could not be successfully prosecuted. He would not state a very decided opinion as to what should be done, as he saw difficulties on both sides; but he wished to state that he entertained grave doubts whether he could consent to remove all punishment for receiving rescripts from the Bishop of Rome, who claimed supremacy as well in temporal as in spiritual matters. The punishments of premunire and treason were cruelly severe, and ought never to be applied in such cases as this. Having given expression to his doubts, he would only further say that he trusted his noble and learned Friend, with the resources of professional skill, than whom no man was more gifted, would be enabled to adopt some middle course—some course which would neither offend the just scruples of one class of Her Majesty's subjects, or alarm the great anxiety of another class. He had stated the opinion, or rather he had hinted the objection which pressed on his mind at that moment, and having done so he was content to leave the matter in the hands of his noble and learned Friend and the bench of Bishops, whose assistance his noble and learned Friend most anxiously desired in the very important task he had undertaken. He did not think that they should altogether dispense with the prohibition of religious processions in the streets. He had no 1268 alarm himself, nor, perhaps, had any noble Lord on this matter; but he knew how feelingly alive the people of this country were on the subject, and how much they would be shocked and offended by it; and he did not believe that the public peace would be secure in Birmingham or Manchester, or even London itself, if popish processions were attempted to be got up in any of those places; he, therefore, thought that it would be proper to continue the prohibition against them. Then with respect to bells—he had suffered too much from from them in Catholic countries, from their continual clanging to fear—[The LORD CHANCELLOR: There is nothing in the Bill regarding either processions or bells.] Then he had fallen into a mistake as to the provisions, and he closed his observations. The question of oaths required to be well considered—perhaps, as in 1829, the securities might be put in a separate Bill, and the two go pari passu through Parliament. Only one word with respect to the interference in religious matters. He had heard with great concern that a very extraordinary proceeding had taken place in another country with which he was connected by the ties of friendship and residence; and for the preservation of the strictest ties of friendship between that country and this no one on either side of the Channel was more anxious. He had heard that the Government of France had permitted prayers to be offered up by the Archbishop of Paris, for the conversion of the Sovereign and the people of this country from their heresies to the true—that was the Roman Catholic—faith. He thought that a little strange. His excellent and gifted Friend the Minister of that country, M. Guizot, was not a Catholic, but a stanch Protestant—it must have been an oversight, because he thought nothing could be more unbecoming, nothing more reprobated, than that in one country the religious authorities should so interfere with the concerns of another country. The Archbishop of Paris must have totally forgotten that he was ordering the people of France to pray that Her Majesty should forfeit her Crown. The people of France must have been in ignorance of that fact, because they had an attachment to the Queen of a strong nature; their loyalty to Her Majesty amounted nearly to that of Her own subjects—at that moment they were looking for Her Majesty's presence in their country with anxiety. With so much attachment and 1269 loyalty, they would never dream, even for a moment, of excluding Her Majesty from the benefit of their prayers; yet they were actually praying that she might forfeit the Crown. A more unfitting injunction he had never heard of than that issued by the Archbishop of Paris. It must have been an entire oversight on the part of the Government of France; and the moment the fact was brought to their attention, he had not the slightest doubt but steps would be taken to prevent a repetition of so obnoxious a proceeding. He was not a Catholic; he had a very great respect for those who believed in that faith; he only wondered they could—the prayers in his behalf were utterly thrown away; but still he thought such a proceeding indecent, if not worse. His noble and learned Friend had opened the Bill in a manner so lucid and admirable, that in any other person it would have been extraordinary; but they had heard so many luminous statements from his noble and learned Friend which set imitation at defiance, that they became accustomed to it, and were compelled to admire at a distance; he had not only opened the Bill with perfert distinctness, but with perfect candour and fairness: all he hoped was that his noble and learned Friend would, before the Bill went into Committee, give his attention to the doubts he had stated as having arisen in his mind, and he felt certain that they would be either removed or cleared up.
The BISHOP of LONDON
did not rise to oppose the second reading of the Bill, but to state some objections which had arisen to it in his mind during the luminous speech of the noble and learned Lord on the Woolsack. No man would more readily or with more alacrity go along with the noble and learned Lord in abolishing penalties on religious opinions, where it could be done with safety, than he would; but he thought the objections taken by the noble and learned Lord opposite (Lord Brougham) with respect to the publication of papal bulls and rescripts, were justly taken, and deserved the best consideration, not only of the noble and learned Lord on the Woolsack, but of their Lordships generally. The noble and learned Lord must not be surprised that some of the provisions of the Bill were looked upon with some apprehension and alarm by those who had been accustomed to regard the question of the supremacy of the Crown as a question of the very first importance, and as deeply involving a great question of public policy. 1270 He confessed that he had not had time, and perhaps had he had time, he might not have had the capacity, so far to make himself master of the subject, as to see the bearing of some of the provisions of the Bill upon that question. He believed it required rather a legal head than a theological one to understand the effect of the Bill in that respect. That his noble and learned Friend had any intention to affect the great question of the supremacy in a dangerous manner, any man who knew him would not for a moment believe; and he was certain that before the Bill went into Committee the objections of his noble and learned Friend opposite would receive consideration, and that proper securities would be taken for the safety of the great principle of supremacy. When his noble and learned Friend recollected what the papal supremacy implied, he would not be surprised that some alarm had been felt on the bench occupied by the right rev. Prelates on the introduction of this Bill. The jurisdiction claimed by the Pope, as denounced in our oath of supremacy, involved the right of depriving princes of their thrones, and absolving subjects from their allegiance. Nay, it was notorious that that right was at the present moment not only held, but taught by the ultramontane divines in countries not far distant from our own. No doubt it was not taught openly, because the parties so teaching it would be liable to a prosecution for sedition; but the Pope's supremacy was taught in a manner which to a person well acquainted with church history was, in effect, teaching the right of the Pope to absolve Her Majesty's subjects from their allegiance to her Crown. He could not but think that some of the provisions of the Bill went further than was intended by his noble and learned Friend. It was proposed altogether to repeal the 5th Elizabeth, cap. 1. That Act had been considered by the Criminal Law Commissioners, to whom the Bill introduced by a noble Lord (Lord Beaumont) had been referred; and they reported that although it might be very proper to modify many of its provisions, they doubted whether it would be advisable to repeal it altogether. With respect to the issuing of bulls, that was a question which appeared to him to be an exceedingly difficult one. It was not possible, he thought, to prevent the Roman Catholics in this country from receiving directions from the only recognized head of their church. If their 1271 religion was tolerated, they must be allowed free communication with those to whom they looked for instruction. But then as to bulls being issued and published without some restrictions, as his noble and learned Friend opposite had said, they might be so framed as to sow the seeds of disaffection, and at the same time so that no one would be able to prosecute them as libellous. He entirely agreed with the noble and learned Lord opposite (Lord Brougham), that a system of inspection would be desirable before publication, if indeed publication could be at all permitted; and he was glad that the objection on this point had come from such a quarter, as being less liable to the suspicion of what was termed bigotry, than if it had originated with a person who occupied a position like himself. He looked, with his noble and learned Friend, on this question, as regarded the Queen's supremacy, chiefly as a political matter. He would put aside the effect that might be produced on the religious opinions of Her Majesty's subjects, but would regard it merely as affecting them as tied by their allegiance. He hoped that before they went into Committee that his noble and learned Friend on the Woolsack would also direct his attention to this part of the subject. With these remarks he should take leave of the subject for the present. He was at one time inclined to entertain the opinion that they should have the assistance of the Judges as to the effect that this Bill might have on Her Majesty's supremacy; but after what had been said by his noble and learned Friend on this subject, he would not say anything more on that point. He trusted that this Bill, while it would remove all harsh restrictions on the profession of religious or conscientious opinions, would be framed in such a way as to be productive of no dangerous consequences.
§ LORD CAMOYS
hoped he would be pardoned if he trespassed for a short time on the attention of their Lordships. First of all, he begged leave to express his thanks to the noble and learned Lord on the Woolsack, on his own part, as well as on behalf of 8,000,000 of Roman Catholics in England, Ireland, and Scotland, for having brought forward this measure; and their obligations were considerably added to by the talented and conclusive speech in which the noble and learned Lord had introduced the question before the House. The noble and learned Lord proposed to repeal a number of Acts of 1272 Parliament and portions of Acts of Parliament, because they were obsolete and contrary to the spirit of the present age, and because also they were a stain on the Statute-book of this country, and were no longer necessary for the purposes of security. But, his noble and learned Friend had omitted to propose the repeal of those parts of the 3rd of James I., cap. 5; 1 William I., cap. 26; the 12th of Anne, st. 2, c. 14; and the 11th Geo. II., cap. 17, which prevented Catholics presenting to livings. There were some Catholics he knew to whom presentations to livings belonged; but he was not one so situated. They were forbidden by these laws from making presentations to such livings; the course therefore they pursued was to sell the next right of presentation. Surely there was no danger to be apprehended from the exercise of this right, for the person presented to a living must be examined and approved of by the bishop before he could take possession of it. There was also an injustice in these Acts. If the law said that none should be entitled to present to livings but Members of the Church of England, he could understand it; but the law merely said that Catholics alone should not make presentations; so that while they were excluded, Quakers, Jews, or Infidels might exercise that power. He held in his hand Butler's edition of Coke on Littleton, in the 4th note of which, page 391 B, it was distinctly pointed out that before persons were presented to livings, they must subscribe to the Thirty-nine Articles. The conclusion of this writer was similar to that which he had drawn on the subject; and there could not, therefore, be any danger in allowing Catholics to present to livings. He thought that he had said sufficient on this point to induce his noble and learned Friend to take this matter into consideration. His noble and learned Friend, while he proposed to repeal certain Acts of Parliament affecting Roman Catholics, did not touch the Act 9th of Geo. IV., which was called the settlement of the great question of the removal of Catholic disabilities; and he should not quarrel with this description, for no one had more ground to be satisfied at it than himself. But if there were provisions in that Act of the same character as those which the noble and learned Lord proposed to repeal as being obsolete, contrary to the spirit of the age, and no longer necessary for the purposes of security, he saw no reason why they should not be dealt with 1273 in the same manner as any other Act of Parliament. He did not see why an Act of Parliament should be sacred because it was recent; he, therefore, would suggest to his noble and learned Friend the propriety of making some alterations in it. He would first refer for this purpose to the 16th Clause, which provided that nothing contained in it should extend or be construed to extend to enable any person professing the Roman Catholic religion to exercise any right of presentation to any ecclesiastical benefice. The next clause the repeal of which he would suggest was the 24th, which enacted that any person assuming or using the name, style, or title of archbishop, or bishop, or dean of any place in England and Ireland which was held by a dignitary of the Church of England, should for every such offence forfeit 100l. What was the use of retaining such a clause, for it was only applicable to the individual himself using the title? For instance, everybody called Dr. Murray the Catholic Archbishop of Dublin; but if he called himself so, he would be liable to a penalty of 100l. Was there any sensible reason for retaining such a penal clause? The next clause also imposed a penalty of 100l. on any person holding a corporate office attending a place of public worship other than that of the Church of England in his insignia of office. The next clause imposed a penalty of 50l. on any member of a Roman Catholic religious order wearing the habit of his order, except within his usual place of religious worship. Now, both these clauses should be repealed; and they never should have been introduced into the Bill for the settlement of this great question. It was much better to leave such matters to the operation of public opinion than to legislative enactments. If public opinion was against a practice, it would not take place; but if public opinion sanctioned it, he questioned whether such a law would be sufficient to put it down. He should now refer to some other clauses—from Clause 28 to Clause 36 inclusive:—And whereas Jesuits and members of other religious orders, communities, or societies of the Church of Rome, bound by monastic or religious vows, are resident within the United Kingdom, and it is expedient to make provision for the gradual suppression and final prohibition of the same therein"—He (Lord Camoys) might here ask whether, from the passing of that Bill, any attempt had been made, or even thought of, to carry this provision into execution—Be it therefore enacted, that every Jesuit, and 1274 every member of any other religious order, community or society of the Church of Rome, bound by monastic or religious vows, who at the time of the commencement of this Act shall be within the United Kingdom, shall, within six calendar months after the commencement of this Act, deliver to the clerk of the peace of the county or place where such person shall reside, or his deputy, a notice or statement in the form and containing the particulars set forth in the schedule to this Act annexed, which notice or statement such clerk of the peace, or his deputy, is required to preserve and register amongst the records of such county or place, for which no fee shall be payable; and a copy of which said notice or statement shall be by such clerk, or his deputy, forthwith transmitted to the chief secretary of the Lord Lieutenant, &c.; and in case any person shall offend in the premises, he shall forfeit and pay to His Majesty for every calendar month during which he shall remain in the United Kingdom without having delivered such notice or statement as hereinbefore required the sum of fifty pounds.He (Lord Camoys) believed that when the Act was first passed, there were some few members of those religious bodies who took notice of these clauses; but it was soon found to be a dead measure, and no person now thought of complying with them. Every one of those persons, therefore, was liable to a penalty of 50l. for every month that had passed over since the passing of the Emancipation Act. They did not keep the Act upon the Statute-book for any useful purpose—no State necessity had arisen to induce them to prosecute for the purpose of obtaining those penalties; but still, it was open to any person through private feeling—it was open to any malevolent person to sue for those penalties. The next clause enacted—That if any Jesuit or member of any such religious order, community, or society as aforesaid, shall, after the commencement of this Act, come into the realm, such person shall be deemed and taken to be guilty of a misdemeanour, and being thereof lawfully convicted, shall be sentenced and ordered to be banished from the United Kingdom for the term of his natural life.The next clause directed—That in case any natural-born subject of this realm, being at the time of the commencement of this Act a Jesuit, or other member of any such religious order, community, or society, as aforesaid, shall, at the time of the commencement of this Act be out of the realm, it shall be lawful for such person to return, or to come into this realm, and upon such his return or coming into this realm he is hereby required, within the space of six months after his first returning or coming into the United Kingdom, to deliver such notice or statement to the clerk of the peace, &c., for the purpose of being so registered and transmitted as hereinbefore directed; and in case any person shall neglect or refuse so to do, he shall for such offence forfeit and pay to His Majesty, for every calendar month during which he shall remain in 1275 the United Kingdom without having delivered such notice or statement, the sum of 50l.It was also enacted that the Secretary of State might grant licenses to such persons coming into the country; but if the person to whom such license was granted did not leave the kingdom within a certain time after the termination of such license, he was to be banished for the term of his natural life. The 33rd Clause declared that, in case any Jesuit or member of any religious society should after the commencement of the Act admit any person to become a member of such order, or be aiding or consenting thereto, he should be deemed guilty of a misdemeanour, and in Scotland punished with fine and imprisonment. By the 34th Clause it was enacted, that in case any offender under the Act, who should be sentenced and ordered to be banished, should, after the end of three calendar months from the time such sentence had been pronounced, be at large within any part of the United Kingdom without some lawful cause, every such offender should be transported to such place as should be appointed by His Majesty, for the term of his natural life. He (Lord Camoys) might, he thought, well ask if he were reading a Relief Act? If any noble Lord had come into the House when he was reading those clauses, and had not known that they were contained in the 10th George IV., would he not rather have supposed that they belonged to some Act of Parliament passed in the reign of Elizabeth or James, than to an Act of Parliament passed in the more tolerant days of the nineteenth century? If those clauses had been to be found in an Act of Parliament passed two hundred years ago, they would have been in all probability proposed to be repealed by the Bill of his noble and learned Friend. He thought it was right to state, when those harsh laws were made against the regular clergy, that although they had often in that House heard accusations made against the secular clergy, especially in Ireland, for attending public meetings and becoming agitators, he never recollected to have heard any accusation of the same nature made against the regular clergy in England or Ireland; and he could say with truth they were most liked wherever they were most known. If the Catholics alone were seeking to have these clauses repealed, it would only be common sense and justice on their part. But there was a very large party not Catholics 1276 who were consenting to the repeal of these clauses. They knew from the Votes of the other House, that a Bill had passed a second reading in that House by a large majority, which contained the repeal of these very clauses. That Bill was brought in by three Protestant Gentlemen—it was passed by a majority—Members of the Government voted for it; but he was quite aware of this, that they were distinctly not pledged to carry in Committee that which they supported on the second reading. That, he thought, was sufficient to justify him, undertaking, as he did, to represent the Catholic public—that was sufficient to justify him in suggesting to his noble and learned Friend the considerations he had mentioned. He was quite aware of the humble position which he (Lord Camoys) occupied in their Lordships' House. He knew that they were now dealing with a great question, involving great constitutional principles; and therefore he thought it more becoming in him to offer those suggestions to his noble and learned Friend, rather than originate, either now or at any future stage of the Bill, any substantive proposition. He did so under the conviction that if his suggestions were well founded, and if his conclusions were correct, and derived from correct premises, he might safely leave this matter to the justice of their Lordships, convinced that if they could be complied with, they would be complied with without hesitation. He thanked their Lordships for the attention they had been kind enough to afford him, and he begged to recommend his suggestions to his noble and learned Friend.
The BISHOP of EXETER
said, that the noble Lord who had just sat down had given his reasons for introducing some very important additions to the Bill of the noble and learned Lord on the Woolsack. Now, in the first place, he (the Bishop of Exeter) begged leave to say, that he much doubted if there could be any such additions made as had been suggested. What was this Bill? This Bill was confined to certain particulars, and did not profess any general policy. They had heard a general principle announced from the Woolsack that night; but the Bill contained no such principle. It was a remarkable circumstance attending this Bill—it was, in one respect, absolutely singular: the Bill did not venture to say what was its principle—it had no preamble, or anything that would guide their Lordships, or enable them to ascertain what was its principle. Notwithstanding 1277 what his noble and learned Friend had said of the principle of the Bill, when he introduced the second reading of it on that night, the Bill itself justified no such statement; it was a mere series of Acts of Parliament, or parts of Acts of Parliament, stuck together for the purpose of their being repealed, but without its being said why they were to be repealed: the Bill itself did not so much as say that it was expedient to repeal them. Therefore, to introduce more of those Acts into a measure of that sort did seem to him (the Bishop of Exeter) to be doing what was not in accordance with the strict formalities of their Lordships' proceedings. With regard to the additions themselves, which the noble Baron, whether regularly or irregularly, wished to introduce into the Bill, he (the Bishop of Exeter) thought it was a matter of very little importance: it was not as to any want of regularity that he had to complain. But he had heard, he must confess, with astonishment and pain, that they were again to have these matters discussed. He regretted that they were returning to the discussion of a question which he had hoped, as he believed most of their Lordships had also hoped, had been settled for ever. He was in hopes that the very liberal relief given by that Act which had been so harshly dealt with that night by the noble Baron (Lord Camoys), which had given to him the honours of his family, and to their Lordships the benefit of the assistance of that noble Lord, would have proved satisfactory; and he was surprised to find that the very small restraints imposed by that Statute should be objected to. The noble Baron had ventured to speak of the extreme severity of that legislation: he said, if any person had come into their Lordships' House while he was speaking, and heard him give a detail of this petty legislation—for that was the term by which the noble Lord had characterized what he, nevertheless, called extreme severity—such stranger would not think that they were in the nineteenth century, but would rather suppose they were in the sixteenth century, and legislating in the spirit of the times of Queen Elizabeth and King James. He (the Bishop of Exeter) must say, that when the noble Baron made those observations, he must have forgotten all those promises of gratitude and thankfulness which they were accustomed to hear before the passing of that Act, and which they continued to hear for some time afterwards. It should be 1278 recollected that, in the reign of Queen Elizabeth, instead of a penalty of 50l., the punishment would be forfeiture of goods and chattels; instead of the trifling inconvenience that was given to those persons by the Act of 1829, they would have to endure the penalty of high treason. The extravagant and monstrous crimes attempted in Elizabeth and James's time, drew down this tremendous vengeance on the guilty heads that threatened so much mischief to the country; and if similar enormities were no longer to be apprehended, these enactments might justly be mitigated. But was this a reason why they should give up the protection altogether against those acts which they still deemed to be dangerous? Was nothing, he asked, to be done because they were not still to inflict the penalties of high treason and the punishment of forfeiture? But that was not all the noble Lord had said. He had told them of a Bill now in the other House containing all those provisions, which had been read a second time, with the full concurrence of the First Minister of the Crown. He threatened them with the passing of that Bill, and, therefore, had forsooth endeavoured to persuade their Lordships and his noble Friend, that they ought to introduce those provisions into the Bill now before them. But he would tell him that if there was one argument stronger than another why his noble and learned Friend should not introduce those provisions into his Bill, it was that which the noble Baron himself had given. It appeared that a Bill was passing through the other House which contained almost all those provisions. He believed that all of them were included in that Bill, which had now received a second reading in the other House. But could they doubt that if it should come at all, it would come to their Lordships' House, shorn of those particular provisions which the noble Baron hoped they would introduce into this Bill? He (the Bishop of Exeter) should not hold it possible that those clauses would appear in any Bill that the other House should send to that House for their approbation. He would not believe, he would say, so shamefully of his kind as to suppose that the Prime Minister of this country, who, when he passed the measure of 1829, had declared that if there were any attempts made to interfere with the few miserable securities that were given, such attempts should receive his sternest resistance, would now be a consenting party to any measure that 1279 would contain such clauses as those which the noble Baron proposed to introduce. He did not believe it possible—he believed, on the contrary, he would indignantly disclaim any such propositions if they were pressed upon him. He had, it seemed, consented to the second reading of the Bill in the other House. There was nothing in the Bill that would preclude it from being read a second time; but there was much in it which would render it utterly impossible for their Lordships to pass that Bill, if it reached them in its original shape, and with all the provisions which it originally contained; and which would, in truth, repeal the few securities provided by the Statute of 1829. He (the Bishop of Exeter) had been compelled thus to allude to parts of a Bill now in the other House, by what had been stated by the noble Baron. He would now refer to one clause in the Statute of 1829, which had excited the special wrath of that noble Baron; namely, that which inflicted a penalty of 100l. on any person who laid claim to the title of archbishop of a province, or bishop of a diocese, except those persons who were by law entitled to do so. He (the Bishop of Exeter) should be very frank with the noble Baron on this subject. He thought, instead of that being an act of petty legislation, that it was one of the most important character. He thought, however, with the noble Baron, that in one particular it was petty legislation. He thought it was beneath the importance of the matter with which Parliament had then been dealing, to inflict merely a penalty of 100l. on those who laid claim for themselves to those titles. He thought they should have extended the penalty to all persons who gave those titles to them in any way that would bear the character of asserting the right of any person to the position of archbishop of any province, or bishop of any diocese, except those whom the law of the land recognized as such archbishops and bishops. He (the Bishop of Exeter) would not wish, for one, that any enlarged punishment should be inflicted on the party so doing; but he thought such pecuniary penalty should be inflicted as Parliament should have thought fit to adopt. He thought they had acted most unprovidently and incautiously in not doing so; for when they forbore to inflict upon others a penalty for giving to the Romanists in England or in Ireland the style or title of archbishop or bishop, they did, in fact, render it impossible to convict the individuals themselves 1280 who assumed those titles, because it was manifest that in the case of a publication in a newspaper they could not establish the fact against the party, except it could be actually proved that the manuscript was put into the printer's hands by the individual who professed to have written it. The mere printing of a letter, signed "John Tuam," in the Times newspaper, would not do; and if the law officers proceeded against the newspaper in which it appeared, they might say that they had incurred no penalty for putting in that letter, and refuse to give up the author. It was true they might be forced to give evidence upon trial by a subpœna; but be that so or not, he must say, that it was owing to the extreme laxity of permitting such an important restriction to pass with so slight a guard, that they had been told that night by the noble Baron that the provision was obsolete. But, with respect to this provision, he had said that it was important, and he would tell their Lordships why: those who introduced it into the Statute were actuated by a very wise motive—they knew very well, and the noble Lord knew very well—no person in that House knew it better—that there could not be two bishops of a diocese. [A noble LORD: Hear, hear!] He (the Bishop of Exeter) rejoiced, but was not surprised, that the noble Lord testified by his cheers his assent to that principle. [Lord CAMOYS: It was not I that cheered.] Then, if the noble Lord disclaimed that cheer, he knew that the noble Lord was prevented from so indicating his assent by feeling how extremely awkward the admission would be. He defied him, however, to deny the position itself. The noble Baron knew, and their Lordships knew, that there could not be two bishops of a see—they knew that one individual only was entitled to be called bishop, and that he was the bishop of that see to the exclusion of all other persons. Therefore, they must consider the Church in which he was bishop as the Catholic Church in the land; and those who claimed the title of bishop for any individual belonging to any other body of Christians in the land were thereby pronounced by the Legislature to be in a state of schism. The importance of that clause could not be too largely estimated; for by that clause in that Statute the Legislature declared the Church of England and Ireland to be the Catholic Church in England and Ireland, and the Romanists in both countries to be in a state of schism. The noble Baron 1281 had complained that the Roman Catholic noblemen and gentlemen in this country should be excluded from the right of presentation to livings. He said there were other bodies differing from the Established Church who were not prevented from exercising that right. He agreed with the noble Lord, that this was an anomaly—an anomaly, however, which, if removed at all, ought to be removed, not by giving to Romanists the right of presenting to benefices in the Church, but by taking that trust from all others who were not members of the Church. For he (the Bishop of Exeter) begged to be permitted to say, that all patrons of Church benefices were, in fact, trustees of those benefices for the Church of England; and he would say that the law could not regard the members of the Roman Catholic communion as fit persons to be trustees of benefices for the Church of England. He felt really surprised the noble Lord should be anxious to exercise such a privilege; and he felt astonished that he should consider it a degradation to be precluded from exercising it. He (the Bishop of Exeter) thought it a gross anomaly in the law of the land to permit any who were not members of the Church to be intrusted with the sacred duty of appointing its pastors. He would now make some reference to the Bill before their Lordships, and he should advert to the two parts which alone seemed to him to call for observation—that which relates to the supremacy of the Crown, and that which deals with Papal Bulls. So far as regarded the supremacy of the Crown, their Lordships would forgive him if he reminded them that that was not the first or the hundredth time at which, within the walls of that House, the question of supremacy had been discussed: it had been there discussed from the very earliest times. This Statute went to remove all penalties for extolling the supremacy of the Pope—as exercised when? In the nineteenth century? No; but in all times preceding the times of Queen Elizabeth. They were gravely told that they should no longer make it penal to set forth and extol the papal supremacy to the utmost extent to which Hildebrand and Innocent, or any other of the most despotic and usurping Popes, had ever presumed to carry it. But even at this day the supremacy of the Pope was spoken of, and went to the most frightful extent; and if they permitted themselves to make it no longer penal in any degree to extol that supremacy, 1282 they must prepare themselves for another religious war. He believed that nothing short of that could happen if their Lordships should be prevailed upon to make it no longer in any measure penal to extol the supremacy of the Pope. Their Lordships were aware that, two years ago, they had been asked to repeal this Statute, so far as would affect the penalties of high treason and premunire, and he would be be very glad to concur in any mitigation of the penalties; but two years ago their Lordships deliberately re-enacted — inasmuch as they saved that part that enacted—the forfeiture of goods and chattels for extolling the supremacy of the Pope. Therefore he (the Bishop of Exeter) hoped that his noble and learned Friend would reconsider this part of his Bill, and be contented with mitigating that penalty. But in order that they might the better know the matter on which they were invited to legislate, he (the Bishop of Exeter) would quote from a Roman Catholic authority to show what the supremacy of the Pope really was. He was now speaking of Queen Elizabeth's time; but the authority to which he referred—Bellarmine—flourished chiefly in the reign of James I. He stated the several doctrines that were held with respect to the supremacy of the Pope. It was his own opinion, which he declared to be also the common opinion, that the Pope had not directly any temporal power; but then the Pope had indirectly all power whatever in temporal matters. He said, that if the management of temporal affairs appeared to be prejudicial to spiritual ends, the spiritual power could and ought to coerce the temporal. The Pope, he said, had the supreme authority of disposing of the temporal things of all Christians, of deposing kings, and restoring kingdoms, not as an ordinary judge, but as the supreme spiritual power; he could not ordinarily establish temporal laws, but he could do these things if the kings themselves would not. He (the Bishop of Exeter) would remind their Lordships that even in their own times—he meant in the times of those who, like himself, were old enough to remember these things—they had seen this power of deposing kings indirectly brought into action. They would recollect that, at the time when Napoleon possessed the crown of France, the Pope entered into a concordatum with him, by which he bound himself to maintain the new ecclesiastical code in that country, and by which he called upon the bishops 1283 in that country, who had sworn allegiance to Louis XVIII., to obey that code; and by one stroke of his pen, he (the Bishop of Exeter) would not say extinguished eighty or one hundred bishops, but professed to dispose of their sees, because they refused to transfer their allegiance from Louis XVIII. to Napoleon, at his (the Pope's) command. But the thing did not even rest there; for one of the most liberal of all the advocates for the relief of the Romanists in this country, Mr. Charles Butler, absolutely, and in print, affirmed that to be right. He addressed those of the French bishops who, in this country, were exclaiming against the act of the Pope as an unheard-of tyranny, and told them that they were bound by the principle of their own Church to acknowledge that authority of the Pope, that dominicum altum (such were Mr. Butler's own words) which in extreme cases did enable him to do what Pius VII. did, namely, to transfer the allegiance of a whole kingdom from Louis XVIII. to Napoleon. This he (the Bishop of Exeter) conceived furnished a sufficient ground for caution on their part, and should induce them not to permit any person, by writing or speaking, to affirm, extol, or set forth the spiritual jurisdiction of the Pope. He (the Bishop of Exeter) apprehended—and he put this proposition with the utmost deference and respect to their Lordships—that if this Statute were passed, removing the only statutable penalty for extolling the power of the Pope, it would be difficult to maintain an indictment against any person for doing so. He would put this question to their Lordships: was it fit that such an important class of doctrines as were included in the extolling of the spiritual supremacy of the Pope were at once to be cleared away from their Statute-book; and were they to do that with a slur on the Statute containing them? He (the Bishop of Exeter) ventured to state to his noble and learned Friend that he would find, he believed, all his right rev. Friends as ready as he (the Bishop of Exeter) should be to support him in introducing any measure of relief to Romanists, which would be consistent with such an efficient mode of affirming the supremacy of the Crown in this country as should secure an adequate penalty against any person for asserting the contrary. However generous and liberal the intentions of this Bill might be, if it were permitted to pass their Lordships' House in its present form, their Lordships 1284 must be contented to bear what he could not but regard as a well-deserved reproach; and they would have no right to murmur if the country considered them to have acted most erroneously and most reprehensibly in removing penalties, the existence of which had been, by men as wise, as patriotic, as good friends to religious liberty, and the peace and welfare of the people, as the ablest and most liberal of the noble Lords whom he saw around him, judged necessary for the dignity of the Crown, the safety of the Church, and the well-being of the people.
§ LORD BEAUMONT
concurred with his noble Friend (Lord Camoys) in thinking the noble and learned Lord on the Woolsack deserved the thanks of the Catholics of this country for having introduced the Bill now under discussion. That Bill he did not believe to be fraught with any such dangerous consequences as the right rev. Prelate (the Bishop of Exeter) appeared to anticipate so painfully, and he would accordingly give it his hearty support. When he (Lord Beaumont) introduced in a former Session a Bill somewhat similar in its object to the present, he consulted many persons of learning and authority as to the effect which it was likely to have upon the doctrine of the supremacy of the Crown in this country, and it was proved to his clear satisfaction that no danger on this score was at all to be apprehended from the measure, inasmuch as that the supremacy of the Crown being a fact, the abolition of punishment for denying that fact could not in any way affect the fact itself. It was on this understanding that he introduced his Bill, it being clearly evident that the question of the supremacy of the Crown was not touched, and never could be touched by the repeal of the Statutes which it was in contemplation to rescind. He was not surprised that the right rev. Prelate should have experienced some difficulty in reconciling his desire for toleration with his apprehensions respecting the perfect security of our institutions; inasmuch as the Roman Catholic church in this country was placed in a totally different position from that which it held in other European States; and the wholesome control which the State in Catholic countries exercised in respect to the conduct of the clergy, and their communication with Rome, was neither claimed or allowed in this country. The absence of this power in the Government might induce the rev. Prelate to think that Statute laws of a penal natures 1285 were necessary as substitutes for the direct interference of the Executive; but a little reflection would show him that these apprehensions were wholly unfounded. The difficulty that presented itself in this case resulted altogether from the anomalous position in which England was placed with respect to her foreign diplomacy, by refusing to do what all other countries in Europe, even Turkey included, had done—namely, to put herself in relation with Rome. Much misconception and much unfounded apprehension had arisen from the exaggerated statements which had been made in various quarters respecting the supremacy of the Pope. This question was, in truth, to be judged of, not by reference to past dogmas, but to present policy; for every one who had ever been at Rome knew that the Pope never revoked nor rescinded any bygone bull or proclamation, no matter how much it might be disapproved of subsequently to its publication. New bulls of a different character might be put forward; but it was well known that no bull once issued was ever rescinded, and it was, therefore, quite visionary to base an objection to the measure now under consideration on any grounds having reference to any ancient manifestoes of the See of Rome. The question was one which in itself appertained not to the dogmas or religion of the Church of Rome, but to its policy. It was no portion of the religious belief of a Roman Catholic that the Pope possessed any power to depose princes; and he (Lord Beaumont), as a Roman Catholic, emphatically denied that out of the Papal dominions the Pope possessed any authority to depose or displace any potentate whatsoever, or any person in authority. This being the true state of the case, what possible necessity could there be for retaining on the Statute-book enactments, having for their object the infliction of penalties on those who attempted to set up, affirm, or extol the supremacy of the Pope? If it was a doctrinal point in the faith of Catholics that the Pope possessed the power of deposing princes, nobody could fulfil the religion of a Catholic who did not hold the doctrine; yet where was the Catholic who held any such belief? There was a wide difference between matters of faith and matters of discipline or policy. The former were immutable, and unchanged must ever remain; while the latter varied with the times or disposition of the monarchs of the day. The anathemas, bulls, and usurpations of temporal 1286 power were part of a temporary policy, with regard to which any Catholic might use or form an independent judgment. No sensible man could now-a-days defend the past history of Rome, or the use the Popes made of their power. He protested against the extent to which the right rev. Prelate sought to carry the meaning of the phrase "supremacy of the Pope;" and he again denied that the repeal of an Act of Parliament to punish a person for denying the fact of the supremacy of the Crown, could affect in any way the fact itself. He could not see what good or valid reason there could be for retaining on the Statute-book the Act of the 13th of Elizabeth. At the period of its enactment it might have been necessary — nay more, there could be no doubt but that it was then called for, by the audacious act of Pius V. in not only excommunicating Queen Elizabeth, but "thundering damnation" against her; but in the present state of society, and in the present condition of Europe the law was totally unnecessary, and the sooner it was rescinded the better. Let them look at the state of society on the Continent, the progress of learning, the spirit of independence afoot, and the liberal views of leading statesmen, and then ask themselves if there was any chance of seeing revived the ancient thraldom in which the Vatican held men's minds, or any danger proceeding from so prostrate, so ridiculous, or so despised a Government as that of Rome? She depended for existence on the breath of Austria, and was hated by her own people. The time had fully arrived when not only all penal statutes of this nature should be finally blotted from the Statute-book, but when England ought to place herself on a footing with the other enlightened Governments of Europe, by adopting some measure with a view of doing away with the anomaly which she now presented, of being the only country in Europe not in regular communication with Rome. Treat Rome as you treat Florence, Lucea, or Parma; put the Pope on the same footing as any other petty prince in Italy; and do not continue a system of hostility which was only suited to the day of his greatness, now that he has fallen, from his own weakness, into general neglect.—The noble Lord having again expressed his gratitude to the Lord Chancellor for the introduction of the measure, declared that he would with the utmost confidence leave in the hands of that noble personage the task of bringing 1287 in another Bill for the repeal of such other penal statutes as still remained unrescinded, not being touched by the present measure; and concluded by stating that it would afford him great pleasure to support the Bill now under their Lordships' consideration.
§ LORD COLCHESTER
could not agree with the opinion expressed by his noble Friend, of the doctrine of the Pope's supremacy in temporal matters having been given up. He feared very much that the theory still remained dormant, and that it was a matter of discretion with the Pope as to the expediency of reducing it to practice. The Pope had not interfered of late days in the temporal affairs of Spain, Italy, Portugal, or Germany; but the reason was, that he feared that by so doing he might not be promoting the interests of the Church. Considering the changes which were now going on, and the desire which the clergy manifested of retaining power in their hands—and he need not go to the Church of Rome for that manifestation—he thought that great caution ought to be exercised in a question of this kind.
regretted that this measure had not been compressed into one Bill, as the Commissioners had recommended; or that at all events the noble and learned Lord on the Woolsack had not introduced the law with regard to oaths, which was much more important than the supremacy of the Pope, or the publication of bulls, and was even more disgraceful to the Statute-book. The Bill as it stood should receive his most cordial support. He was by no means disposed to wish that greater facilities should be given for the establishment of regular orders and nunneries here than in France and other Roman Catholic countries, of which there might be danger, unless that were done which he strongly urged upon the Government, a concordat entered into with the Pope. It was very doubtful to him whether diplomatic intercourse was prohibited by the Act of Settlement; but, at all events, he thought steps ought to be taken to establish that connexion.
The LORD CHANCELLOR
, in reply, said, that as to the supremacy of the Pope, one of the right rev. Prelates had thought it advisable that the opinion of the Judges should be taken on the subject; but he thought the question too clear to render that necessary. He had arranged, however, with the right rev. Prelate, that the opinion of one of those learned persons, of 1288 very high authority, should be taken. That had been done; he had handed that opinion to the right rev. Prelate early in the evening, and it was decisive on the subject. As to the importation of bulls, there was no such Act of Parliament in Scotland or Ireland, and no evil consequence had ever been felt. Did not that show that all this terror was imaginary—the result of ingenious scruples? He would take into consideration the suggestions which had been made in the course of the discussion, and would exert himself to meet them, as far as was possible, consistently with the efficacy of the measure.
§ Bill read 2a.
§ House adjourned.