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The public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) online

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Chap. XLIII, but without any summary of or extracts from it, the reader being merely
referred to the present Appendix. The principal passages are now subjoined at their
full length, from Hatchard's original edition, 1821, in Lord Eldon's own words, as
furnishing at once an authentic record of his opinions on this great subject, and an
accurate specimen of his parliamentary style.

The earlier pages of Hatchard's publication are in the third person and past tense,
which form is occasionally resumed in subsequent parts of it.

He began by apologizing " for taking so early an opportunity of expressing his
sentiments." (He spoke fourth in the debate, the preceding speakers being the Bishop
of St. David's, the Duke of York, and the Earl of Darnley.) "He trusted that he
might stand in some measure excused for an early and prompt interposition against
the measure, which, whilst it seemed to impose upon a lord chancellor, who, under
the bill, might, be the only lay-servant of the crown in Great Britain necessarily a Pro-
testant, the peculiar duty of watching over Protestant interests, appeared to him
necessarily and obviously to bring all those interests into extreme peril.

"He observed that the noble lord who spoke last had declared his conviction that
this measure, or one of the same character, must sooner or later be carried. It might
be so; but he should, nevertheless, feel it to be his duty, as attached to civil liberty
and to religious liberty (best protected by the'Protestant establishment in this country,
connecting its church establishment with an enlightened and liberal toleration), to
oppose the introduction and progress of every such measure as the present, through
evil report and good report, as long as opposition to it could be offered. If the ma-
jority of the House should at any time finally determine that his opinions had been
founded in error, he should at least enjoy the satisfaction which would result from a
conviction that he had not willingly erred, and that he had most anxiously endeavoured
to avoid error.

" If it could be supposed that this bill, if the House went into a committee, could be
reported upon without very material variation, destroying in a great measure, if he
might so express himself, its identity, the Roman Catholic would know what he had
to hope for, and the Protestant what he had to dread. But, in his judgment, any bill
or measure which could come out of a committee, must be altogether different from
that which the House, if it read this bill a second time, would propose to commit; and
therefore the further proceeding on this bill appeared to him as objectionable as
former motions, always rejected by this House, were, when, without the introduction
of bills, the House was moved to form committees to consider generally what mea-
sures might be introduced, motions which, if adopted, would probably have raised
expectations in the minds of the Roman Catholics which could not be gratified, and
have created alarms in the minds of the Protestants which the legislature ought not
to excite."

Adverting to that argument for the measure which had been founded on the autho-
rity of great names, particularly Mr. Pitt's, Lord Eldon observed that Mr. Pitt had
always admitted the necessity of securities; but that no man appeared ever to have
learnt from Mr. Pitt what securities they were which that great statement would have
approved: and " no man had yet found out what securities he could propose on the
part of the Protestants, which the Roman Catholics would give as the price of what
they were to receive.

And what was the state of matters now 1 That the House had before it 'a bill,
proposing concessions almost unlimited; but with securities, the only securities, he


presumed, which the wisdom of those who have introduced this bill could, after medi-
tation for twenty years, suggest, quite inefficacious, if enacted; which the Roman
Catholics will not only withhold, but which they deem it matter of gross insult to have
had it proposed to them to give."

Lord Eldon then gave a general abstract of that part of the bill which removed,
with a few exceptions, all the disqualifications of the Roman Catholics. With respect
to such parts of the bill, as applied " to what was to be required of persons exercising
ecclesiastical functions, professing the Roman Catholic religion, and to what was to
be enacted as to bulls, dispensations, or rather instruments coming from the See of
Rome." he observed that " little had been said in debate.

" Whether the Roman Catholics did or did not object to them, much of objection
to them most reasonably might be urged ; but that probably the whole of this part of
the bill had been found so unpalateable to the Roman Catholics, that little had been
stated in debate respecting them little but general expressions or that they might
be altered in the committee with no very slight intimation that, at last, we might
safely act as to the Protestant interests without any securities at all to be given by
the Roman Catholics."

He was ready to admit that the securities ought not to be required if the concessions
could be made without danger; but he did not think that they would be so made. It
had been too generally assumed as a " wandering" out of the line of our duty to con-
sider those measures in what was called the religious view of them.

"He had always felt that it was one of his first duties to maintain the established
religion of the country. Fortunately for the country, it had adopted the purest system
of Christian faith in its established religion ; by connecting with the laws, which
established its church, laws securing a liberal and enlightened toleration, as to those,
who dissented from its church, it had probably placed, upon the best and surest foun-
dations, the civil and religious liberties of all who lived in the kingdom. But they
were told that all this was wrong; and that they should allow everybody of Christians
to take its chance in the world. He was of a different opinion. He should ever
assert that an established religion was a great benefit to a people that the object of
such an establishment was not to make the church political, but to make the state
religious. Such was his firm persuasion a persuasion so strongly entertained, that
he would much rather see a less pure system of Christian faith established with a
liberal and enlightened toleration of those who differed from it, under which toleration
we, who adhere to the doctrines of our present Established Church, might enjoy shelter
and security without power, political power, than to see this country without any
established church. Such must also have been the sentiments of all those great men
who had concurred in establishing and in repeatedly refusing to shake the provisions
of the Corporation and Test Acts, which, according to Blackstone, 'secure both our
civil and religious liberties:' among the latter of whom were to be numbered Mr.
Pitt and others, who had at different times meditated and proposed the repeal of the
laws respecting Roman Catholics.

" It appears at first sight unaccountable how it should have happened that those
who had brought forward the present measure, a measure which they had announced
' as putting an end to all jealousies, as uniting and knitting together the hearts of all
his majesty's subjects in one and the same interest, had not bestowed the benefit
of one single enactment upon their Protestant dissenting brethren. When the consti-
tution was settled at the time of the Revolution a settlement now about to be shaken
the church establishment was secured the Toleration Act passed at the same time
in favour of those Protestants who could not adhere to that church establishment
the members of both were thought to have contributed to the overthrow of Popery and

"The present measure relieves the Roman Catholics from disabilities, from which
it aims not, in any manner or degree, to relieve our Protestant brethren. Can this be
mht? Can the legislature think of doing this? No nor can it be so intended. You
agree to this bill. Those who bring it before you for adoption, well know cannot
but know that you must repeal (hat you cannot refuse to repeal the Corporation and
Test Acts of England. They know this it behoves the House not to forget it, for the
sake of the Established Church. If it is fitting and just to communicate to the Roman
Catholics, in the measure and extent proposed by this bill, ' the benefits and advan-
tages of the constitution and government happily established in this kingdom.'
according to the preamble, it must be equally fitting and just with respect to our
Protestant brethren.

"It should not, however, be forgotten, that our constitution and government, as


established, is aconstitution and government, which does not consider political power
as one of ihe benefits and advantages' to which all subjects are equally entitled.

"As it is fashionable in this House, to refer to Blackstone as an author, their lord-
ships might, in his works, find the grounds and principles, upon which the distinction,
as to the grant of political power, or the withholding political power, rests ; and the
grounds upon which, however friendly that writer was to the relaxation or abolition
of the penal laws against Roman Catholics in given events, he holds that ' whilst they
acknowledge a foreign power superior to the sovereignty of this kingdom, they cannot
complain if the laws of the kingdom will not extend to them what it has done for
Protestant Dissenters, or complain if the laws of the kingdom will not acknowledge
them upon the footing of good subjects.' A doctrine equally held by Selden, Locke,
Clarendon, Somers, and others of the greatest name in our history.

" It is said, however, that they do not now acknowledge such a foreign power, or, at
least, if they have heretofore acknowledged such a power, they will utterly, or, as far
as reason can require of them, disavow all jurisdiction now, that is foreign, if they,
according to this proposed act, take the oaths of allegiance and abjuration, and the
oath specified in the proposed act. And we are told that the Protestant succession
to the crown, and the Church of England and Ireland, and the Church of Scotland, are
already, by the acts mentioned by this bill, permanently and inviolably secured: an
acknowledgment this that they ought to be secured; that they are by the effect of these
acts permanently and inviolably established and secured, if the means and provisions
adopted by these acts are continued in force, permanently and inviolably, may be
granted. But, if the means and provisions, ordained by these acts, are destroyed by
your proposed legislation, and nothing is to remain of these acts but declarations that
your constitution in church and state is Protestant, you have nothing better than what
has been called a paper or parchment constitution.

"To ascertain the effect of what we are doing, it is necessary to see what we are
undoing, and to trace, therefore, in some measure through our history, what the supre-
macy of the crown, and the allegiance of the subject, mean.

" With respect to the oath of allegiance, this bill proposes no modification of it.
There are many statutes respecting the oath of allegiance: but the common law not
only recognizes what is called virtual or implied allegiance, but also expressed alle-
giance that is, allegiance expressed by oath the common law oath of fidelity and
allegiance. Allegiance is undivided allegiance. The common law and the statute
law look to undivided allegiance. The supremacy of the crown is an indivisible
supremacy; the allegiance due to the crown is an indivisible allegiance. Passing
over that long and eventful period of our history previous to the Reformation, in
which the crown and its subjects were so often involved in contests with the Pope
and the See of Rome, often working the degradation of the crown and kingdom by
abject submission, sometimes asserting in those struggles the honour of both, and ex-
hibiting a display of the most ardent love of liberty; it is from the commencement
of the Reformation down to the present time that we must look more especially to
the course of events, and the nature of our laws, with reference to the present rights,
liberties, and duties of the crown, and the subjects, in matters civil, ecclesiastical, and

" It is therefore unnecessary to trouble the House with the history of all that passed
in this kingdom from about the time of Edward the Third, and before, to the period of
the Reformation, respecting Papal provisions of benefices, the purchasing of benefices,
the appeals to Rome, pensions, Peterpence, dispensations, bills, rescripts, &c., and
other Papal usurpations.

" The supremacy of the Crown had been most solemnly asserted and reasserted by
Henry VIII. and Edward VI. The acts passed in the reigns of those sovereigns it
would be worthy of those, whom he addressed, accurately to acquaint themselves

"Not that those acts were the foundations of the crown's supremacy in ecclesias-
tical matters, or of this doctrine of the Church of England respecting it: they asserted
a supremacy inherent in the crown according to the constitution they did not create
it; and he was mistaken if we had notan Ecclesia Anglicana, with the king its supreme
head, before the Pope of Rome could be said to have endeavoured to obtain any footing
in this island.

" To determine what was the supremacy which the pope did claim in this country
it may be important to see what was the supremacy which we claimed for and on
behalf of the pope. He wished their lorships to read the statute of the 1st Philip and
Mary, cap. 8. Few had read it: but a more humiliating, a more degrading, a more


debasing national record, he believed, did not exist in the annals of the world. J\~o
man who would read it could fail to feel alive, and tremble lest we would ever again
open a door for the entrance of that lion which had nearly devoured us. Observe,
there, how many acts of Parliament touching temporal rights are repealed, as con-
trary to the pope's supremacy acting in ordine ad spirilualia; and then let it be deter-
mined by the old rules of construction of statutes, by looking at others inpari maleriu
by the contemporanea expositio,- by seeing what was the mischief contemplated, and
the remedy proposed what was claimed by the pope as belonging to his supremacy
and what Elizabeth in her oath of supremacy, and James I. in his oath of obedience,
meant to deny to the pope, and to assert as inherent in their crowns Let it be so
determined what the Pope of Rome claimed, if represented as claiming only a spirit-
ual supremacy.

" These are what Lord Hale calls the two eminent oaths of supremacy and obedi-
ence, observing, ' that the ecclesiastical supremacy of the crown is a most unquestion-
able right of it, that the pope had made great usurpations upon it, that the statutes
rejoined and restored it to the crown, that the papal encroachments, yea,even in mat-
ters civil, under the loose pretence in ordine ad spiritualia, had obtained a great strength,
notwithstanding the security of the crown had by the oaths of fealty and allegiance.
So that there was a necessity to unrivet these usurpations by substituting, by autho-
rity of Parliament, a recognition by oath of the king's supremacy, as well in causes
ecclesiastical as civil.'

" When Parliament to the oath of allegiance added this oath of supremacy, there
could be no necessity of further explaining the common law oath of allegiance : and
if the present oath of supremacy remains unaltered, the oath of allegiance will re-
quire no alteration now. But if allegiance means undivided allegiance to a sove-
reign supreme head in church and state, it might not, perhaps, be otherwise than
open to much doubt, whether if, for the sake of Roman Catholics, the oath of supre-
macy is explained by statute, the oath of allegiance may not also require, for them,



"The preamble of this proposed act states scruples inasmuch as the Roman Ca-
tholics apprehend that ' the oath of supremacy might in part import a disclaimer of
the pope's spiritual authority in matters of religious belief;' and what in matters of
religious belief that authority might require from them has not been ascertained by
inquiry here made, or information here given, and seems not to be very easily ascer-
tainable. The proposed oath does not, however, assert that he has no other spiritual
authority ' than in matters of religious belief:' but that he has not any 'authority,
which, in any matter, conflicts or interferes with the duty of full and undivided alle-
giance, which, by the laws of this realm, is due to his majesty, or with the civil duty
and obedience which is due to his courts civil and ecclesiastical, in all matters con-
cerning the legal rights of his subjects, or any of them.'

" It is quite obvious that this leaves it entirely with the party taking the oath to de-
termine for himself what does or does not so conflict or interfere with such allegiance,
duty and obedience. And of how many errors may the removal, or, as Lord Hale
expresses it, the unriveting, become necessary, when the Roman Catholic shall (as
he heretofore determined ifor himself what was spiritual and what portion of spiritual
obedience he could withhold, though he owed full and undivided allegiance) when
he shall determine hereafter for himself, what authority of the pope does or does not
conflict or interfere with the duty of such full and undivided allegiance, and such
civil duty and obedience as is mentioned in this proposed act.

" That it is peculiarly necessary to consider alterations of this kind in oaths with
jealousy is a proposition which experience might sanction.

" In the oath, permitted by the Irish Act of the 13th & 14th of George III., the Irish
Roman Catholic swears to maintain the succession of the crown, and in heirs of the
body of the Princess Sophia, being Protestants, but in his majesty's royal family
and not in that family, being Protestants. If this oath was the oath regulating the con-
duct of the Irish Roman Catholic, its effects would be to be estimated, if there should
be in that family, upon the demise of the crown, an individual not Protestant. It at
least demonstrates how carefully the effect of every word in a prescribed oath should
be considered.

"After the English act for the relief of the Roman Catholics passed in 1791, in
1793 that act passed in Ireland, from which a noble marquis last night read the oath
which it prescribes. That noble lord observed that, after renouncing and repudiating
certain principles and supposed articles of faith, and disavowing any intention to


subvert the present Church Establishment for the purpose of a Roman Catholic esta-
blishment in its stead, the concluding part of the oath was thus expressed: 'I do
solemnly swear, that I will not exercise any privilege, to which I am or may become
entitled, to disturb or weaken the Protestant religion and Protestant government in this
kingdom.' Lord Eldon said he had in his hand a print of that act of Parliament: he
had also looked into the printed statute book, and he found that the words were not
weaken OR disturb, but weaken and disturb; and it was observable that the print of
the statute, which he held in his hand, was peculiarly calculated to draw attention to
this distinction, the conjunctive and being printed in large characters, and made the
subject of the following comment. The printer appears to be Mr. Coglan. The Irish
Roman Catholic will probably have no difficulty in finding in the commentator a
member of his own church.

"The comment is thus expressed :

" ' All are here agreed that, to violate the above clause, it is necessary to disturb AND
weaken not only the Protestant religion, but likewise the Protestant government. They
are connected evidently by the conjunctive and, without any comma after religion.
Both must be disturbed and weakened, not in any manner, but precisely by the exercise
of the privileges now granted. In other respects, we are in our former situation, as
to preaching, teaching, writing, 4~c. Weaken after disturb appears rather an expletive
than a word conveying a distinct meaning, for it is implied in disturb; as whoever
intends to disturb, a fortiori, intends to weaken. Hence, the expression is generally
understood, and so it has been explained by every one consulted on it, to weaken by
disturbance. Indeed, if or was between the word disturb and the word weaken, as it
was proposed to be, the signification would be changed and inadmissible.'

" Surely this sort of reasoning upon the terms of an oath should teach us to use great
caution when we are prescribing in what terms we shall require oaths of security to
be taken."

The observations which follow, as far as p. 29, relate to the phraseology of the
particular oath to be proposed by the bill in discussion. Lord Eldon proceeded:

" Without adverting more, as yet, to what is or is not to be the state of ecclesiasti-
cal persons professing the Roman Catholic religion, under what may be called the
second part of this bill originally another, or second bill how would a Roman Ca-
tholic clergyman deal with such a case as the following?

"Two persons intermarry, being in a state of consanguinity, such as does not pre-
vent a marriage between them being valid according to our law a consanguinity
which is said, however, to form what is an impedimentum dirimens. Should a Roman
Catholic ecclesiastic feel it to be his dutyto refuse the sacramentto the parties, unless
they voluntarily separate, it is to be supposed that he would act according to that
duty. It has been understood that such would be his duty: he discharges that duty :
and, by the exercise of it, induces the woman to separate herself from the person, ac-
cording to our law, her husband. The husband, on the contrary, thinks proper to sue
for a restitution of conjugal rights, and compels the wife to return. If such a case
as this could happen, no reasoning, no casuistry, no distinction between what is tem-
poral and what is ecclesiastical, between what is civil and what is spiritual, could
lead a legislature or a state to the endurance of it, or entitle an ecclesiastic to claim
the character of a good subject, or to assert that he was doing nothing which con-
flicted or interfered with allegiance, civil duty and obedience when he was using spi-
ritual means in putting asunder those who, according to the law of his country, were
joined together."

Lord Eldon next reviewed the legislation of this country for the exclusion of Pope-
ry, through its long series, from the Act of Uniformity to the Acts of Union : " True it
is," added he, "that Parliament cannot be absolutely bound by such an enactment
for all generations ; but, when it is discussing whether such laws as these are to be
considered as fundamental and essential, as making the state and the religion of the
country fundamentally and essentially Protestant, and the kingdom itself a Protestant
kingdom, no man can deny that they are as far as in the nature of laws they can be,
unalterable, i. e., that they are not to be altered without cogent necessity clearly shown;
and that it is incumbent upon those who propose the changes now meditated, to make
out the necessity of so much alteration in the nature of an establishment, expressly
formed in order that our religion, laws and liberties, which had been subverted, might
never again be in danger of being subverted.'"


"Will his majesty's subjects, professing the Roman Catholic religion, and if this
bill passes, summoned to both Houses of Parliament to consult concerning the affairs


of the church, and therefore joining in acts relative to the discipline, worship and
government of the Protestant Church, consent that the Protestant member of these
Houses shall so legislate as to the like ecclesiastical matters affecting the Roman
Catholic body.

"If the statutes of 1791 and 1793 did not sufficiently relieve the Roman Catholics
of the United Kingdom from pains and penalties, let them be so relieved. That is
not the object of this bill , which is to give them political power in almost as great a
degree, and to as large an extent, as it can possibly be conferred.

"If there be any thing, not political power, which it may be proposed to enact for
them, or anv of them, neither is that the object of this bill.

"This bill does not propose certainly to change the system established at the Revo-

Online LibraryHorace TwissThe public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) → online text (page 63 of 65)