§ LORD HEMINGFORD had the following Notice on the Paper: To move to resolve, That in the interests of national unity and of unity among the Christian Churches it is desirable that all remaining civil disabilities on religious grounds on persons not members of the Church of England should be removed and that His Majesty's Government be requested 457 to introduce the necessary legislation for this purpose as soon as conveniently possible.
§ The noble Lord said: My Lords, I desire your permission to make a very slight alteration in the wording of my Motion. As it stands I think the Motion could in no way be held to apply to, or affect the Crown, but in order that there may be no doubt about it, I ask your Lordships to allow me to substitute for the word "persons" in the third line the words "subjects of His Majesty." The Resolution will then read "… it is desirable that all remaining disabilities on religious grounds on subjects of His Majesty not members of the Church of England" and so on. I suppose that prior to, say, the beginning of the eighteenth century religious strife was responsible for more wars, and more bitter wars, than any other cause at all. As civilization progressed religion as a cause of war ceased to have the same effect, and then, with a further advance of civilization, came the gradual removal of religious disabilities.
§ In this country religious disabilities were removed in very large measure, and I think perhaps on the whole very quickly, but they were removed by a succession of Statutes, the effect of which in some cases was very doubtful. Be that as it may, it has removed the greater part of those religious disabilities, and, as I say, I think that civilization has had the result of removing religion from being a common cause of war. The war that we are at present engaged in is one—I think I shall carry your Lordships with me in this—in which all religions, or perhaps, if I may use the phrase, all civilized religions, are banded together to fight the forces of irreligion. It is in those circumstances that I submit to your Lordships' House that it would be very much in the interests of the country, in the interests indeed of all the Allied Nations, that we should make a final and generous gesture in raising our voice in favour of the removal of all remaining religious disabilities. Your Lordships will realize that moving my Motion in this form I do not put my proposal forward in the nature so much of relief to any particular religion as of getting rid of disabilities which in my opinion should never be allowed to interfere with the conduct of our public affairs in this country.
458§ Now I must come to the question of what remaining religious disabilities there are, if any, and I say "if any" advisedly. I believe I am right in saying that the only remaining disabilities, at any rate the only remaining disabilities of great importance, are two; namely, that a Roman Catholic cannot be Lord Chancellor, and that a Jew cannot be Lord Chancellor. But even that is, I believe, a matter of some doubt. It is, however, generally supposed that members of those two religions—when I speak of Jews I must be understood throughout to mean adherents of the Jewish faith—cannot become Lord Chancellor. I take as my authority for the fact that those disabilities do exist, in the opinion, at any rate, of great legal experts, Halsbury's Laws of England, in which it is stated, I believe I am right in saying, quite definitely, that the Lord Chancellor must be a Protestant. At any rate, it is stated that neither a Roman Catholic nor a Jew can be Lord Chancellor. But if you turn to what is said on the subject in Anson's great history of the British Constitution you will find that there is at least a doubt about it. Therefore, that doubt should be removed, and if that doubt is to be removed it can be removed in one way only, by removing the disabilities.
§ I hope that from what I have already said it will be understood that I put this matter forward as a political rather than as a religious matter, but I must deal with the particular case of the position of the Lord Chancellor for I know that, in the country at any rate, I hope not so much in your Lordships' House, there is violent objection on the part of a small number of people to a Roman Catholic being permitted to be Lord Chancellor. For that we have, to some extent, to blame the common saying that the Lord Chancellor is the Keeper of the King's Conscience. In these days there can scarcely be a more meaningless or misleading saying than that the Lord Chancellor is the Keeper of the King's Conscience. We owe that particular phrase, or its popularity, I think, very largely, to Blackstone; and may we turn for a moment to see what Blackstone says about it? He explains that originally, in pre-Reformation days, the Lord Chancellor was generally a cleric, no other person being qualified in other respects 459 to hold the position, and that he thus usually became the King's Confessor, and was Keeper of the King's Conscience. That, at any rate, has gone. In these days there can be no doubt about that. But there is a further point, and this also is dealt with by Blackstone, that, later than the days of the Reformation, the Lord Chancellor in the Chancery Court had the duty of putting forward what in those days I believe were called—I hope I am using the proper legal pronunciation—Petitions monstrans de droit. The reason of this was that when the King, having been ill-advised—for he could do no wrong of himself—had done anything which caused injury to the subject, he would immediately put the matter right by referring it to the Lord Chancellor, the Keeper of the King's Conscience. Now all that, again, has completely gone. The Lord Chancellor's original jurisdiction in equity, as so-called Keeper of the King's Conscience, to make good to the subject unwitting offences by the King, has all been got rid of by subsequent legislation, and, finally, by the last Judicature Acts. I think I am right in saying, though I speak with much deference in the presence of great lawyers, that the particular jurisdiction which was said to be that of the Keeper of the King's Conscience, is now vested even less, perhaps, in the Lord Chancellor than in others of His Majesty's Judges; certainly it is not vested in the person of the Lord Chancellor alone. Therefore, I hope that nobody will use that phrase as an argument against the removal of these religious disabilities, unless he can find some better reason than I have been able to find for the Lord Chancellor being described, in these days, as Keeper of the King's Conscience.
§ I do not imagine that any monarch for some time back would have admitted that anybody in this country was the keeper of his or her private conscience. To some extent it might be correct to describe, in some way, as the keepers of the King's Conscience—his official conscience, if I may call it so—those whose advice he has to take under the Constitution. But in that case who is it that is the King's principal adviser, or who are his principal advisers?—the Cabinet, and especially the Prime Minister. There is certainly nothing to prevent the Prime Minister being a 460 Roman Catholic, or belonging to any other religion, or having no religion at all. There is nothing to prevent the office of Lord Chancellor being held by an atheist or an agnostic or a member of any religious body except the Roman Catholic Church and the adherents of the Jewish faith. This is not merely illogical; it is unnecessary. It is—though I put this as the smallest part of the argument, perhaps—a slur upon the reputation of a large body of His Majesty's subjects; and, if it is to have any effect at all, it must be a constitutional inconvenience to the country. A man is not appointed Lord Chancellor who is not suitable for the post, or at any rate it is a long time since that happened. If such a thing should happen in the future, there are other ways of rectifying the evil. A man's unsuitability for the position may well be due to some reason other than religion. A case which many of your Lordships may remember occurred about the middle of the last century, when a Lord Chancellor was removed from office as the result of a vote of censure passed on him by the House of Commons. That was not done on religious grounds; it was based on the accusation, at any rate, that he had been guilty of what in those days was a comparatively venial offence—that is, of prefering some of his relatives and friends to office in a way which he should not have taken.
§ What reason is there for disqualifying a man from holding this high office simply on the ground that he is an adherent of a particular faith or of a particular Church? If that matter is to be taken into consideration at all, it should be done the other way round, and the religion which a man must hold to qualify him for the office of Lord Chancellor should be stated. I venture to suggest that in these times there is really nothing to be said which can carry any great weight in favour of this penalty of proscription on religious grounds of persons belonging to certain religions. If that be so, then it is time, not so much in the interest of Roman Catholics or of the adherents of the Jewish faith, but for the good name and in the interests of the country itself and of our Constitution, to get rid of this illogical and totally unnecessary impediment to the promotion of certain people to hold this high office.
461§ I should like to go back into recent past history and to mention three men who would have been very qualified to hold this high office, if it had not been for this religious disability. The first name which will no doubt occur to your minds almost at once, is that of the first Lord Russell of Killowen, who was a Roman Catholic. We shall all remember also Lord Reading, who was disqualified as an adherent of the Jewish faith. I do not think that anyone here will question the assertion that he would have adorned rather than disgraced the office of Lord Chancellor. The third case is that of a man who died comparatively early in life, so far as positions of this sort are concerned—under the age of 60—Sir George Jessel—Master of the Rolls. He was held by many to be the greatest equity lawyer of modern times. Why should the State deprive itself, by an archaic and doubtful relic of ancient times, of the opportunity of being able to make use of such men as these? In the case of Sir George Jessel, the question might well have come into prominence if he had lived some years longer, but there is an interesting fact which I should like to mention in regard to him. He held the office of Master of the Rolls, because this particular disability does not apply to that office, but I believe that I am right in saying that in older times, when the Lord Chancellor was supposed to have a special jurisdiction as Keeper of the King's Consience, the Master of the Rolls was his chief assistant, and, as sometimes happens, the greater part of the work and duties of the Lord Chancellor in that direction in those days was laid by him on his assistant. If the Master of the Rolls could be a Jew or a Roman Catholic, why could not the same apply in the case of the Lord Chancellor?
§ I do not think that there is any need for me to elaborate my argument much more, but I should like to say another word about the opposition which still exists among a small number of people in this country—I believe a rapidly dwindling number—to a Roman Catholic holding this office. In 1891, when the late Mr. Gladstone introduced a Roman Catholic Relief Bill which would have allowed the Lord Chancellor to be a Roman Catholic, the opposition was sufficient to cause the withdrawal of the Bill. Again, when the last Roman Catholic Relief Act was passed in 1926, and when, indeed, the only disabilities 462 remaining were ones which had practically fallen into desuetude, the relief in respect of the Lord Chancellor was left out of the Bill, because of the immense amount of violent opposition which it would have aroused in some parts of the country. I know something about that opposition from the half-dozen or more letters which I have received from various parts of the country in the last few days with reference to this Motion. I shall refer particularly only to one of them, although I am not sure that it is much worse than some of the others, but it stated quite definitely, with regard to Roman Catholics, that "what we want in regard to these people is not peace but war, and to exterminate the whole system." The very violence of those Anti-Papists is sufficient to show that they can have very little solid argument in their favour. We have good reason to be thankful in this country for the great services which have been rendered both by Jews and by Roman Catholics, and I doubt whether anybody in your Lordships' House would for a moment think that members of either of those faiths were people who could not be regarded as loyal subjects of the Crown. In those circumstances I sincerely hope that your Lordships will accept and pass my Motion.
§ I should, perhaps, say a word about the end of it, which is a request to His Majesty's Government to introduce the necessary legislation. I have particularly worded that in a most temperate manner and asked them to do so as soon as is conveniently possible. That, am afraid some of my political friends would say, is asking them to introduce it some day which may never come, and for the very reason which I have given for advocating this Motion here I am most anxious to do nothing to embarrass the Government. I had perfectly well realized that legislation for this purpose at the present time would not be conveniently possible, indeed would not be practicable, and one could not expect the Government to undertake it. But I think the Motion is comparatively meaningless unless it does ask that legislation may be introduced, because in these times of course a private member cannot introduce legislation. In these circumstances I sincerely hope that the Government may see their way to accept the Motion in the words in which I have placed it on the Order Paper, with the small alteration which I have asked your 463 Lordships' permission to make in it. I beg to move.
§ Moved to resolve, That in the interests of national unity and of unity among the Christian Churches it is desirable that all remaining civil disabilities on religious grounds on subjects of His Majesty not members of the Church of England should be removed and that His Majesty's Government be requested to introduce the necessary legislation for this purpose as soon as conveniently possible.—(Lord Hemingford.)
THE JOINT PARLIAMENTARY SECRETARY OF THE MINISTRY OF AGRICULTURE AND FISHERIES (THE DUKE OF NORFOLK)My Lords, the reason for my intervention in this discussion is that certain noble Lords have not found it possible to be in their places this afternoon, and they do not wish the noble Lord, who has raised this Motion to feel that by their absence they are treating him with any discourtesy. Rather would I take this opportunity of thanking him for raising this question, and also for all the past services which he has rendered in this matter. On behalf of the other noble Lords I would like to stress the point that we do appreciate the difficulty of dealing with such a question in the middle of so great a struggle as this war, and we would equally add that if in the future His Majesty's Government should be able to give some consideration to this question we shall be truly gratified.
§ THE LORD CHANCELLOR (VISCOUNT SIMON)My Lords, the House will be grateful to my noble friend Lord Hemingford, for raising this question, and I am sure we all much appreciate the dignified and conciliatory terms in which he has brought it forward. It might at first sight seem a little invidious for the holder of my present office to make a reply, but I do not feel any embarrassment. There is nothing individual or personal about it, and the noble Lord has raised a question which at any rate on one side is perhaps a legal question. I may say at once that I think the answer to his Motion to-day, which I shall ask the House not to accept, is that it is entirely inopportune. There could not be a time, I suppose, when it was less desirable to rouse those fierce feelings which he has described as likely to be aroused by such a proposal than the time at which we now find ourselves.
464 I will return to that consideration in a few moments, but I think first the House will expect me briefly and as clearly as I can to make a short contribution on the legal and constitutional aspect of this matter, and the more so, perhaps, because I do not entirely agree with the view which the noble Lord has presented. I say quite bluntly that I do not know any reason why a Jew should not be appointed Lord Chancellor under our present law—none at all. The objection which obtained down, I think, to the seventies of the last century was that the oath, or one of the oaths, which had to be taken by a Lord Chancellor was taken "on the faith of a Christian," and that manifestly was an objection to a Jew being appointed to the Woolsack. But those words were removed from the oath expressly by Parliament, I think in the year 1867, and to the best of my belief for the last seventy years there has been no objection at all to a Jew being appointed Lord Chancellor, as far as any legal objection goes. The actual case which my noble friend mentioned, or one of the cases that he mentioned, the case of the late Lord Reading, was, I am quite sure, not decided on any such grounds at all, but it was thought by the Prime Minister of the day that the person whom he should appoint was Lord Haldane, and appointed he was. That, I think, really disposes of any objection on the ground that the suggested occupant of the office is a Jew.
As regards the other test, the Roman Catholic test, there is a great deal of history behind that. I should be very sorry to attempt to go into the matter in detail, but it is a matter of a good deal of historical interest, and I must say I think that the view which perhaps I might call the popular view is not in all respects quite correct. I believe that the answer to the question, "Can a Roman Catholic be appointed Lord Chancellor?" is by no means as certain as many people suppose. These disqualifications in our country were of course created by the method of requiring a man who was about to hold a position to take certain oaths, or to make certain declarations. In the Restoration at the time of Charles II was passed the Test Act of 1672, I think, and the Test Act, be it observed, required not only that every Minister of the Crown but that every military and naval officer, and everybody who served the Crown in 465 any capacity at all, should take oaths of allegiance and supremacy, and at the same time make a declaration of his disbelief in the doctrine of transubstantiation. That was designed to have the effect of excluding a Roman Catholic, and in the case of conscientious and honourable Roman Catholics it would exclude.
The matter was carried further. Some five or six years after that, I think in 1677, Parliament extended that provision to the members of both Houses of Parliament, and no Peer could, after 1677, sit and vote in this House unless he made such a declaration, and indeed the declaration was extended and had to include a repudiation of the veneration of the Virgin or the Saints and of the sacrifice of the Mass. There was a period therefore in the history of this House—I think myself it was a shocking situation—in which a Peer, not because he held office, but because he was qualified otherwise to sit in this House, could not sit and could not vote unless he made that declaration. Early in the next century the matter was carried even further because these disqualifying requirements, or some of them, were extended to people practising various professions. No barrister, no attorney, amongst others, under the terms of the Statute of George I, could practise his profession unless he was prepared to take these oaths designed to exclude Roman Catholics. It extended also to heads of colleges, to schoolmasters, and to quite a large number of people.
These were the bad old days. There is not one of us here who is not very glad indeed that these disqualifications should have been removed. How did they come to be removed? Primarily by the passing of the Roman Catholic Relief Act in the year 1829. Everybody knows that Catholic emancipation might very well have come about sooner—almost a generation sooner—if it had not been for the personal and violent objection of King George III in the days when he was exercising what was really a personal government. Pitt, during his Prime Ministership, was in favour of Catholic emancipation. A former occupant of the Woolsack, Lord Thurlow, operating very closely with the King against his own Prime Minister, bad a good deal to do with obstructing the change. Ultimately, as we know, long after Pitt's death, the Roman Catholic Relief Act was passed. Now this is the point on which, if I may say so, not 466 so much the history books but those who occasionally reproduce them go a little wrong. The Roman Catholic Relief Act, in principle, provided that the holding of office and the practising of professions and other things—the public life of any individual man—should be conducted without the obligation of any religious test; but it did contain a provision which said that nothing in that Act was to alter the law as it then applied to, amongst others, the Lord Chancellor, the Lord-Lieutenant of Ireland, His Majesty's High Commissioner to the Church of Scotland, and one or two more. It was in fact a saving clause. It did not of its own force and virtue impose any disability, but it excepted out of the general provision those cases and left them as they were before. Undoubtedly at that date, and for a good many years after, a Roman Catholic, could not be Lord Chancellor.
The question raised is a difficult one on which I do not intend to pronounce to-day. It is whether the effect of the series of rather complicated Statutes passed in the sixties and seventies of the last century, including a Statute Law Revision Act, is or is not to alter the law as to the Lord Chancellor as it existed before. At any rate this can be stated with complete certainty, and this is as far as I can take the matter to-day before I turn to the other aspect: it is quite certain that to-day the Lord Chancellor is not called upon either to make a declaration or to take an oath which a conscientious Roman Catholic could not make or take. I noticed that when my noble friend's Bill of 1926 was being discussed in Committee in the House of Commons a very elaborate speech was made which suggested that the Lord Chancellor at that date, and to-day, had to make a declaration against transubstantiation and the Mass and so forth. Nothing of the kind. That was removed long ago, and certainly for the last seventy years that has not been so. To take some of my predecessors, it is quite certain that Lord Selborne, Lord Halsbury, Lord Herschell, and later occupants of the office, some of whom I see here to-day, did not make such a declaration, and there is no provision that they should have made it. Neither is it true to-day that the form of oath which the Lord Chancellor has to take is in terms which would raise any diffi- 467 culties either to a Roman Catholic. On the contrary, the oaths that are taken by the Lord Chancellor to-day together with the judicial oath are the two oaths ordinarily taken when one assumes any Ministerial office. One is the oath of allegiance and the other is the oath of office—to serve in the office faithfully. There is not the slightest reason, so far as the terms of that oath are concerned, why it should not be taken by a Roman Catholic.
I do not seek to resolve the doubt as to whether the Victorian Statutes to which I have referred, of 1863, 1867 and 1871, have, on their true construction—and they are rather involved and complicated—removed the disqualification in principle altogether. Frankly that is not a matter on which I propose to pronounce. It is quite true, as my noble friend said, that some of the textbook writers—very considerable authorities on Constitutional Law—have stated the matter as he stated it here; but I am not at all convinced that Sir William Anson's treatise, for example, should be read as a confident affirmation of my noble friend's view. I notice that the language which he uses is very unusual. The language in Sir William Anson's book is this:
It is still held that the exception introduced into the Catholic Relief Act, 1829, disables a Roman Catholic for the offices therein mentioned.I think the language of that most careful and learned author, and of his editors since, is deliberately designed to indicate that this is not quite so plain as has sometimes been assumed. Certainly very eminent opinion to the contrary has been expressed.There is, for example, the opinion of Sir John Coleridge, who was Attorney-General in Mr. Gladstone's Government of 1870, and was for many years a distinguished Lord Chief Justice and a very considerable lawyer. You will find, if you look in Hansard in the year 1872, when he was Attorney-General, that he gave an answer—not the ordinary short answer which you have as a rule, at any rate in the House of Commons to a question, but a long, reasoned, argued answer—in which he came to the conclusion, and asserted, that this disqualification did not in fact exist in the case of the Lord-Chancellorship. He may have been right or he may have been wrong, but what 468 one notices—and it is very striking—is that when Mr. Gladstone in the year 1891, being then the Leader of the Opposition, introduced in the House of Commons a Bill which would, in terms, have removed this disqualification by express provision, he used the following language. He said he believed it to be in law seriously doubtful whether Roman Catholics are at this moment disabled from holding the office of Lord Chancellor. I think therefore it is fair to say that the point is a difficult and rather complicated one, and certainly not one on which absolutely positive assertions can be made.
I will go further—and here again I believe I am adopting the view expressed by Mr. Gladstone in his speech—and say that I do agree that before a Prime Minister ever took the responsibility of appointing to the office of Lord Chancellor a Roman Catholic he undoubtedly would be acting most imprudently unless first the law on the matter was by Statute made quite clear. I have no doubt about that at all. There are, of course, arguments of the most serious sort which may be urged either way. It is certainly true that if disqualification still exists it is a survival, almost the only survival, from a time in our history when, as I have pointed out, a similar disqualification was universally applied to all Ministers and all officers of the Crown. It is also quite true, as I think my noble friend indicated that whatever may have been the position of the Lord Chancellor in the days when he was an ecclesiastic especially close to the King, possibly his confessor and, as has been crudely suggested elsewhere, possibly the only Minister who could read—whatever his authority may have been in those days, unquestionably there are more important offices in the Government than the Lord Chancellor's to-day, and it is a very odd suggestion that what is on this view a disqualification in connexion with this office should not also be a disqualification in connexion with the office of Prime Minister and Foreign Secretary and every other Ministerial office.
I think most people who have been brought up, as I am glad to say I have, in the liberal school will feel a very great deal of sympathy with the view, which is a view against tests, and will most warmly approve of the reforms in the law which have step by step removed them. Whether or not on the other hand 469 a change should be made in this case is not a matter for me to pronounce upon. What I may say and what appears to me to be quite conclusive is this, that it would be a most foolish and dangerous thing to bring this old item of controversy into the arena at a time when the whole of us are rejoicing in national unity. I notice that my noble friend's Resolution asks the House to declare that "in the interests of national unity" we should adopt his Resolution, but he has described in very strong terms what he believed would be the result if in a time like this the proposed change, or perhaps elucidation, was made in the sense he desires. In this perhaps he is right, that it would have the result of producing quite a serious protest in certain quarters. Whether that is a protest with which I should sympathize, whether it is on the long view the wise view, is quite another matter, but could anybody in a time like this think it wise in the interests of national unity to produce, as it seems to me quite unnecessarily, this complication?
Therefore I would very strongly urge most respectfully upon the House and urge upon my noble friend that really this is inopportune, that we ought to devote ourselves to everything which promotes general agreement among all the King's servants, and that we should not urge at this time a departure which on my noble friend's own admission and explanation he knows is going to produce in certain quarters a protest. I cannot think that the present system is at this living moment giving gross offence to anybody. I reserve entirely my opinion as to what may be the proper view to take of it in times to come. It has, as I have observed, its roots very, very deep in British history. It represents a survival of a view which has run through centuries. Whether it is right to dispose of it or not it is not for me now to say, but I do most confidently and urgently press upon your Lordships that this is not the time to raise it.
§ LORD HEMINGFORDMy Lords, after what the noble Viscount on the Woolsack has said I cannot really do otherwise than ask leave to withdraw this Motion, because I hope your Lordships will have gathered from what I said that the very 470 last thing I wanted to do was to raise strife in the country at the present moment. It is true that I did refer to the intense opposition which I knew there would be from certain quarters, but my view of it was that that was confined to so very few persons that it would be well outweighed by the gesture of toleration to certain religions which I supposed, at any rate in the case of one, were at the present time labouring under a proscription—a position which is archaic and which might lead to much more serious strife if the members of that particular Church were not the very good and patriotic citizens that they are. This debate will have done something in having produced the very valuable remarks that we have heard from the noble and learned Viscount on the Woolsack and I must accept, and very gladly do so, the view which he has expressed that there is no bar upon a Jew becoming Lord Chancellor. That at any rate has set the minds of some of us at rest on that particular point. With regard to his remarks on the question of Roman Catholics, I cannot help thinking that if they are read with care, in spite of the great caution which he used not to commit himself, there will be found in them the greatest possible solid arguments in favour of that removal of disabilities which I have been advocating. If there is likely to be a storm or outcry raised by a Resolution of this kind at the present time I have no option whatever but to ask leave to withdraw it.
§ Motion, by leave, withdrawn.