Mr. Croker spoke to the following effect:* the house of Hanover are waiting for | hon. gentleman has called the attention of you; come, be the emancipator of the the House, though latest in point of date, Catholics, as you have been the deliverer naturally offers itself as the first object of of Europe, and look in the face the Plan- attention. That measure [57 George 3rd, tagenet and the Tudor. I move you, Sir, c. 92.] was introduced into the House of "That this House do resolve itself into a Lords about two years ago, by a noble Committee of the whole House, to consi- friend of mine (lord Melville); and I had der the state of the laws by which oaths the honour of recommending it to the ator declarations are required to be taken | tention of this House. The right hon. or made as qualifications for the enjoy- gentleman, my right hon. friend, I hope ment of offices, and the exercise of civil I may be permitted to call him, has truly functions, so far as the same affect his stated that this act passed through both majesty's Roman Catholic subjects, and Houses without any opposition; and it is whether it would be expedient in any and also true, as he said, that its virtual operwhat manner to alter or modify the same, ation is to open all the honours and emoand subject to what provisions and regu- luments of the naval and military services lations." to his majesty's Roman Catholic subjects. But the right hon. gentleman is a little mistaken, in thinking that the proposition which, at a former period, and in different hands, had excited such a spirit of anxious and successful opposition throughout the whole country, was precisely the same, or, in law, of exactly similar effect, with the late measure. The truth is, that the last act does not alter, nor affect to alter, the law as it stood at the time of passing it; but it recites, that doubts exist as to the state of the law, and that the practice of administering the Test Oaths and Declarations to the officers of the army, having been long disused, though it continues to be enforced against officers of the navy, it is desirable to clear up those doubts, and assimilate, by a distinct enactment, the regulations of the two great branches of our military service. Sir-I rise to second the motion. I feel that I owe some apology to the House, for venturing to solicit its attention at so early a stage in the debate; but I trust that that apology will be found in the nature of the considerations which I shall have to offer to its attention. These considerations appear to me to be of serious importance; and as I am not aware that they have been hitherto stated in parliament, I am anxious to submit them thus early to the candid examination of the House, and to a fair and full discussion by those who may follow me in the debate. I, for my own part, doubted, and still doubt, that any legislative measure was necessary for this purpose, and I believed that at most a mere declaratory act would have been sufficient. But other persons, for whose judgments I was bound to feel, on every account, the greatest respect, were of a contrary opinion; and, as the difference between us did not all affect the real object which every one had in view, my noble friend and I could have no difficulty in acceding to their wishes. That act therefore, though it is by some persons considered, erroneously I think, as the sole protection of the Catholic na In tracing, as I have lately had occasion to do, the stream of pains and penalties, from its source in the rugged times of our ancestors down to the present day, it is impossible not to be struck with the gradual character of mildness and mitigation which it has assumed. The law raged in the higher periods of our history with the penal fury of a torrent; but as it descended into the valleys of cultivated life and civilization, it expanded itself into a wide and regular stream of beneficence. So much indeed has been done by gradual concession, and by the silent and conciliatory operation of time, that a great portion of what the Catholic asks, and of what the Protestant hesitates to grant, has been already virtually conceded; and, by complying with the request of our Ro-val or military officer, does not-if I am man Catholic fellow subjects, we shall now be only perfecting the course in which our ancestors have led the way. The part of the law to which the right * From the original edition printed for John Murray, Albemarle-street. correct in my view of the general state of the law-place them in a different situation from Catholics aspiring to hold any of the civil or legal offices of the country. I believe, and think I shall be able to show, that they are alike capable of holding civil and military office; and (to put my opi nion in the strongest possible form) that the same operation of law, under which a Roman Catholic might have become a general officer, would enable him to become Jord chancellor of England. I feel that this assertion may excite some degree of surprise; and I own that I should not venture to make it, if, after the most mature examination of my own, and a communication with several gentlemen highly capable of judging upon such a subject, I were not convinced of the truth of the position; I may be mistaken, but I venture to think (however the law may be ultimately found to stand), that I shall be able to show so much of reason, or at least of colour, for my opinion, as will induce any impartial mind to decide, that there should be an investigation into the subject, and that we ought to be satisfied before we proceed in the angry alternation of claims and refusals, what is the real state of the question on which we are debating. Such an inquiry, the motion, which I have had the honour to second, is meant to obtain; and it is with this object, and not with a view dogmatically to establish any opinions of my own, that I shall proceed in my observations. I fear that I shall have to apologize to the House for not being able to lay before it, with as much brevity and clearness as I ought, the state of this case; but when I mention that there are, I believe, not less than one hundred and fifty statutes which apply to this subject, some of which, though expired, must be referred to as commentaries upon the rest; others of which are repealed in a small, and others still in a greater part of their enactments; some prescribing one oath, and one declaration, and others, contemporaneous, prescribing other oaths, and other declarations; when, I say, the law is to be traced through such a mass of various, not to say discordant and contradictory materials, it can hardly be expected, that my habits and avocations should enable me to reduce such a chaos into luminous order, or to lay down with confidence what the result of this multitudinous legislation may be at the present day. I can only say, that I have given the subject such a degree of attention as has satisfied my own mind, and I now shall submit my course of argument to the indulgence of the House. I shall, for the present, pass over all the mass of enactments which took place before the accession of the House of Brunswick; a period, when, if I may use the expression, we took a new lease of the constitution. I need only state, that Roman Catholics, or, as they are universally called in the earlier acts, Papists, are excluded from public office by the operation of certain oaths and declarations which the holders of office are required to take, and which assert certain religious tenets, in which a conscientious Roman Catholic cannot acquiesce. This is so true, that we well remember that a learned doctor (Duigenȧn), who on former occasions took the lead in opposing all concession to the Catholics, told us, with great simplicity," that we did not exclude the Catholics, but that they excluded themselves, by refusing to take the oaths which we proffered to them." The disabilities, then, may be considered as caused wholly by these oaths and declarations. The statute which first prescribed the oaths as they at present exist, and which is, as I believe, the principal one now in force on this point, is the 1st George 1st, stat. 2, cap. 13. This act (amongst a variety of other matter which was merely temporary, and with which I need not trouble the House) provides, that all persons holding any office, civil or military, or any place of emolument or trust (enumerating all possible cases with great care), shall, within three months after they shall have entered upon any such place or office, take and subscribe in one of the courts at Westminster, or at the general quarter sessions of the peace, the oaths in the statute set forth, namely, the oath of allegiance, the oath of supremacy, and the oath of abjuration. By a subsequent act of the 9th George 2nd, cap. 31, it is provided, that instead of the period of three months given by the statute of George 1st, a period of six calendar months shall be allowed for qualification; and it is farther provided, that the declaration against transubstantiation, enacted by the 25th Charles 2nd, cap. 2, shall also be made at the same time. Thus, then, Catholics are not excluded from any of the offices of the state, but are incapable of continuing to hold them, unless they shall qualify themselves with. in six calendar months. And now, Sir, commences a new series of legislation on this subject. From that very year in which this remarkable extension of the period allowed for qualifica tion was made, the wisdom of parliament | the Catholics might now be reduced to has been pleased annually to pass what two great heads, 1st, Their exclusion has been commonly called "The Act of from civil and military offices. 2nd. Indemnity." This act recites the acts Their exclusion from parliament. In eximposing the oaths of qualification, and planation of the first point, Mr. Fox stated, the declaration against transubstantiation; that, "though the subordinate commisand enacts, that any person who may sions in the navy and army were open to have, before the passing of such act, neg- the Catholic, the ranks of admiral, and lected or omitted to so qualify himself, general were denied to them."-The conshall not be liable to any pain or pe- fusion of the law misled Mr. Fox. At nalty resulting from his omission or neg- the time when he spoke, all the honours lect, provided he shall qualify before of the army were, in fact, alike open to the 25th of March then next ensuing. the Catholics, and all the ranks of the And, as a benevolent care has been taken navy alike closed against them. that each new act should pass before the day specified in the former act, the whole, taken together, amount to (what it would seem the legislature intended them to be) a complete indemnity, and a virtual suspension of all the acts of penalty. I am not unaware that these acts would not protect a person who should offend, and be prosecuted to final judgment between the passing of one act and another; but when we recollect that the offence can not be committed before the expiration of six calendar months after the acceptance of office, and that the obtaining of final judgment is the affair, in any case of some months, and in most cases of many months, it is evident that, for all ordinary purposes and cases, the indemnity acts are a perfect and uninterrupted cover. If they are not so, and if a contrary doctrine is now to be esta. blished, it will lead to the enforcement of penalties, not upon the Catholics, but upon the great mass of Protestant holders of office, who-under the faith of those acts of indemnity, under the common and uncontradicted opinion of their intent and effect, and under a century of impunity-have exercised their various offices, without qualification on their part, or without question on that of others. This part of the subject leads me to state to the House, a remarkable instance of the mistakes which have existed as to the state of the law, and of the necessity of coming to a clear understanding upon the subjeet. I must recall to the recollection of the House the able statement by which Mr. Fox introduced for the first tíme this important subject to the imperial parliament; that statement, Sir, is an instance of the luminous brevity, with which that great orator stated his positions, and the abundant eloquence with which he so brilliantly illustrated them. He states that the disabilities affecting Again-in pursuing this subject, Mr. Fox, with that happy and instructive pleasantry with which he sometimes illustrated the gravest subjects, imagined two lords commissioners of the Admiralty assembled at their board for the care of the public interests; "but instead of discussing the propriety of dispatching a fleet to oppose our enemies in the Mediterranean, or to protect our colonies and commerce in the West Indies, imagine," exclaimed Mr. Fox, "our two admirals employing themselves in an argument upon transubstantiation ?"-Sir, Mr. Fox knew well the importance of the great office to which he alluded.-He well knew the uncontrolled power of the high admiral over the most disposable and not least effective portion of the national force. He knew that the navy was the first object to which James 2nd, on his accession, attached himself. He knew that he and his popish advisers clung to it to the last. He was aware that is was the first object of the solicitude of king William-and he was well convinced that the loyalty and devotion of the navy is, in all times and circumstances, of the most vital importance to the government of this country. No wonder then, Sir, that Mr. Fox should imagine that if there were any office in the state from which the Papist continued to be excluded; that if there were any department of power which they were or ought to be forbidden to wield, it would be the extensive, the almost unbounded, authority of the lord high admiral. But what is the fact? why, that, within our memory, the commissioners for executing that office-in defiance of all the reasons which I have just stated, and in the teeth of all the penalties which we are told are in vigour-have disregarded both, and have in no one instance qualified themselves according to law. These observations. I trust, will be a sufficient apology for my endeavour to engage the House to free the Statute book from a state of perplexity which could thus mislead the almost universal information, and almost miraculous sagacity of Mr. Fox. They will also, I hope, serve to excuse any errors or inaccuracies into which I myself may fall, in the examination of so complex a subject. When I call the subject complex, I do not mean to say, that the result is not clear. On the contrary, I have been already able to explain in a few words, and I hope intelligibly, what I consider the present state of the law to be; but, in coming to this result, I have been obliged to wade through a mass of obsolete and antiquated legislation, which I am not sure that I always comprehended, and which I confess that I should be exceedingly puzzled to explain. Against the plain argument which I found on the combination of the 1st of George 1st, the 9th George 2nd, and the annual Indemnity bills, corroborated by the facts which I have connected with them, I cannot foresee what solid objection can be made. I do honestly assure the House that I am not talking for vic tory in the spirit of a party. I am stating, as fairly as I can, the merits of the case; and if my hon. friends who are to follow me should be able to show that my argument is fallacious, and that I have deceived the House, I trust I shall be believed, when I say that I first deceived myself. the act in question has not been expressly repealed; but then I insist that it has been virtually abrogated; and that, to suppose it in force would lead to a monstrous absurdity. In the first place, that act (as far as it relates to this subject), specifies only the oath of allegiance and the oath of supremacy: now, both those oaths are (with only an alteration of the sovereign's name, which I shall mention presently), reenacted, word for word, by the acts of George. Can it be believed that it was the intention of rational legislators to oblige officers to take a set of oaths on their entry into office; and, under the severest penalties, to oblige them to take over again the self-same oaths, next day, or at latest within three months after? Such a notion is manifestly absurd. But the alteration to which I have alluded, made in the oath of George 1st, sets this in a still stronger light. The oath of allegiance in the 1st William and Mary must be taken "in the express words following," or, as it is in another place stated, "in the following words, and no other :"- "I promise and swear that I will be faithful, and bear true allegiance, to their majesties king William and queen Mary." The act of George, as was obviously necessary, alters this oath, so that the officer shall not be obliged to testify his adherence to the deceased king and queen of happy memory, but shall swear to bear true allegiance to his majesty king George." Now, Sir, let me observe that the extraordinary and minute accuracy of the statute of William and Mary, in using the terms," these express words, and no other," is, I believe, wholly unprece dented. I do not recollect any other instance of the use of such a form, nor do I well see what possible use it could have been; except, indeed, it were to guard against the very argument which I am now combating. If the oaths of the statute of William and Mary be in force, they are in force in these express words, in these express words: I promise to bear true allegiance to king William and queen Mary, and no other." This very liability to error is one of my arguments-if, with all the attention which I have directed towards this subject I should have failed in unravelling its details; if no research can guide us, and if no authority will direct us to a clear view of the true state of the law, I ask, confidently ask, is it not high time to have a committee of investigation? It has, indeed, been surmised that some ancient and almost-forgotten statutes may be still in being, though they are not in force; statutes which, when raised from the dead, may be found inconsistent with my view" of the question; and I have heard the Qualification act of the 1st of William and Mary, cap. 8. (by which the qualification is made a condition precedent to the acceptance of office, and not, as by the acts of George, a condition subsequent), mentioned, as likely to have this effcct. I am ready to meet this argument; and, to meet it more fully, will admit that There is also, Sir, another important consideration. This act of William and Mary is not mentioned in any of the hundred indemnity bills which have been passed, though these bills profess to cover all the acts which could possibly" disquiet the minds of any of his majesty's subjects," and though they recite acts both prior and posterior to the act in question. If the legislature had considered it as still existing, they could not have failed to enumerate it with all the other acts in the indemnity bills. These considerations appear to me conclusive that the act of William and Mary was not considered as surviving that of Geo.lst. But even if I should admit, (which I cannot), that it did survive, I can still show, that though not recited, it is covered by the acts of indemnity;-for those acts protect the parties, not only against the statutes which they recite, but against "all other statutes whatsoever;" so that by no possible construction can it happen that persons shall be liable to be, "disquieted" by any galvanic revival of this statute of William and Mary. The same reasoning will apply, with at least equal force, to the several acts of Elizabeth, and her immediate successors, which prescribed tests and qualifications; and I, therefore, shall not weary the House, and perplex the argument by a detailed examination of them. But it will be alleged, perhaps, that the Indemnity act, on which I build so much, is but an act of sufferance, granted by the indulgence of parliament, and liable to be interrupted in its discretion: I admit it; and therefore I am far from saying that the state of the law is conclusive and satisfactory. I admit that, even if it be as I represent it, the Catholic would hold the rights, which I consider him to possess, by a precarious tenure; and I further admit that, with such a precarious tenure, he would not be satisfied; but then on the other hand, I shall shew to the Protestant of the present day, that this system of indulgence has been growing, by gradual relaxations, for one hun dred and thirty years; and that the "wisdom of our ancestors" to which so many appeals have been made on the other side of the question, ought rather to be considered as sanctioning the more liberal views of this subject which I am inclined to take. The act of Indemnity is indeed called an annual act; but when I see it re-producing itself, and, if I may use such a metaphor, flowering for eighty-six years successively and without interruption, I think I may venture to call it rather a perennial than an annual. Let us see then what the opponents of the Catholics must do, if they wish to exclude them from civil office: they must stop the next indemnity bill; they must interrupt a course of legislation which is almost coeval with the reign of the house of Brunswick, and they must do so for the purpose of securing the Protestant succession! They must turn back the stream of experience which has run for near a century in this channel of indulgence,-and they must do it under the pretence of adhering to the wisdom of their ancestors! Upon the excluding oaths and declarations themselves, I shall now make a few observations, which, though they will not affect the legal obligation to take these tests, may yet serve to elucidate and explain the reasons which may have induced the legislature to insist upon them in the earlier times, and to suspend them in the later. The first of these is the oath of supremacy. The meaning and intention with which we are called upon, now-adays, to take this oath, must be very different from those with which it was originally enacted. It is no great recommen dation of it to state that it owes its origin to that enlightened and beneficient lawgiver king Henry the 8th; and even by him it was only enacted for the purpose of establishing a political principle, which, however dubious in those early days, has been for centuries unquestioned and undenied, viz., that the king is the supreme head of the church of England. During the struggles of the infant church, and when men's minds were unfixed and unformed to any class of ecclesiastical policy different from that of the church of Rome the admission on oath of the king's supremacy may have been a necessary niea. sure. But since it is now only taken by Protestants, and as, without it, the declaration against transubstantiation would suffice to exclude the Catholics, it seems idle to continue to impose it upon us, even if there were no intrinsic objection to it; but, there is, I think, a most serious internal objection, which a conscientious Protestant may have, to take, in the days of king George the 3rd, this oath of king Henry the 8th. In this oath he is now called upon to swear" that he does not believe that the Pope or any other foreign potentate bath, or ought to have, any jurisdiction, power, superiority, pre-eminence, or authority, ecclesiastical or spiri tual, within this realm." This may have been, as I have said very proper in the times in which the law was framed, and even in the succeeding |