reigns, as long as the original state of things existed-while it was high treason to write or preach the Pope's authority, -while it was high treason for a popish priest to tarry three days in England,while it was high treason to be reconciled with the church of Rome,-while, in short, pains and penalties, of all denominations and degrees, from the greatest to the lowest, were enacted, to terrify the very name of Roman Catholic out of England; -then undoubtedly the pope had not, and no Protestant would say that he ought to have," any ecclesiastical or spiritual authority within these realms." But when we have now, by law, tolerated the religion of persons holding communion with the church of Rome,-when we acknowledge them by the names of Papist and Roman Catholic, both of which denominations have a direct reference to foreign authority; when we have established by law and endowed by public money a college for the education of Roman Catholic priests at Maynooth; and when we know that all these persons, and that this establishment, acknowledged the spiritual authority of the Pope, how can we, I ask, assert, nay, swear, as a matter of fact, "that he hath no spiritual authority within these realms?" Is it fit, Sir, in this age, that the Protestants of the church of England should be obliged to swear to that which can only be defended by some casuistical explanation, and by referring back, for the meaning of the words, to days, distant three centuries in point of time, and a thousand years in point of intelligence and civilization. But this is not all; we have a parliamentary contradiction of this oath, which no casuistry can explain away; and, what is very singular, this contradiction,-which may well disturb the conscience of a Protestant, arises out of a legislative concession made to quiet the conscience of the Catholic! By the act called Sir J. Mitford's Act, in England, and by the 33rd of the king, in Ireland, an oath is prescribed, by which the Catholic is enabled to testify his allegiance to the king, and entitle himself to certain constitutional privileges. In this oath, framed with great care by the most zealous Protestants, the Catholic is required to swear, in the words (with one important change) of our oath of supremacy," that he does not believe that the pope, or any other foreign potentate, hath, or ought to have, any tem(VOL. XL.) poral or civil power or authority within this realm." By this change of the important and emphatical words, "spiritual or ecclesiastical," into those no less important and emphatical," temporal or civil," the legislature acknowledges, by a direct implication and necessary consequence, that over a great, a tolerated, and a privileged class of our fellow subjects within this realm, in this realm, the pope hath spiritual and ecclesiastical authority; and thus, Sir, I think I may venture to say, that this oath, first enacted and still maintained as a trap for the conscience of the Catholic, is, in fact, nothing else than a trap for the conscience of the Protestant. After my right hon. friend below me (Mr. Grant), shall have proposed to the House a grant of public money for the education of Roman Catholic clergymen, how will he be able to reconcile it with his conscientious feelings, to swear that he believes that the pope hath no spiritual authority within this realm? And, above all, how can he or any man be satisfied with such an oath, when I state, that there is a clause in the act of the 40th of the king, chap. 85, for the better government of the Roman Catholic college of Maynooth, which expressly recognises and excepts from the restrictive operations of the act, "the exercise of the Roman Catholic religion, and the doctrine, discipline, and worship thereof." Can it be denied, that the spiritual authority of the pope is a part of the doctrine or discipline of the Roman Catholic religion? and, if it be so, is there common sense in making us forswear, under one act of parliament, what we acknowledge and assert in another? Nay, I recollect, that in a bill introduced into parliament some sessions ago, which was supported by my noble friend on the floor (lord Castlereagh), and which advanced in this House as far as the committee, there were divers provisions for regulating the intercourse of the Roman Catholic clergy with their pontiff. How can those who introduced that bill, who supported that bill, swear," the pope ought not to have any ecclesiastical authority within the realm.' My noble and my right hon. friends, and I, and all of us, have taken this oath, in a sense which we hope that we understand, but which its words can hardly in fair construction bear; and the right hon. gentleman opposite (Mr. Grattan) very truly stated, as I understood him, that in the sense in which we take it, a Roman (D) This, to the denial of transubstantiation in the former declaration, adds, "that the Catholic would not refuse it. So far, then, as a mode of exclusion to the latter, it would be even, if it stood alone, inopera-invocation or adoration of the Virgin Mary, tive; but, in fact, for that purpose, the or any other saint, and that the sacrifice declaration against transubstantiation ren- of the mass as used in the church of Rome, ders it quite unnecessary.-Why, there- are superstitious and idolatrous;" and it fore, have I dwelt so long upon this ques- then proceeds-with great care and cation of the oath of supremacy, which does suistry, but with no great reliance on the not affect the Catholics? Sir, I have good faith of the party (on whose good dwelt upon it, because it does affect the faith, however, the whole must ultimately Protestants, and because, unless the ob-rest) to guard against " evasion, mental jections which I make to it can be clearly and fully answered, I think that I have stated to the conscience of every Protestant, a strong reason for our going into a committee, in which this contradiction or obscurity may be explained or remedied. The next of these oaths is the oath of abjuration; of abjuration of what, and of whom? Of a popish pretender, who does not exist? Of the issue of James 2nd, over the grave of the last of whom, we have erected a monument? In former times, these oaths of abjuration were varied according to the occasion; and, as the person of the British sovereign, or of the popish pretender, changed by the course of nature, the good sense of parliament varied the objects of our obligation. It was reserved for our enlightened days to continue to abjure claims which are no more, and to disclaim allegiance to a prince whose very posterity has perished. It is impossible, Sir, that this act can much longer be permitted to subsist. To be satisfied of that, it is not, indeed, necessary to go into a committee; but, combined with the other motives which I have given, and shall give, it is, surely, no unimportant reason for acceding to the pre sent motion. Next, Sir, comes the declaration against transubstantiation, which is, in truth, the efficient, and, I might add, the sole, obstacle to a Roman Catholic's enjoying all the rights and privileges of a British subject. Abrogate it, and you grant Catholic emancipation. Upon the subject of these declarations, for there are two of them, the law appears to me to be in great confusion. The first of these declarations is prescribed by the act of 25th Charles 2nd, commonly called "The Test Act." and does no more than, in a few words, to deny the real presence in the eucharist; but, in the 30th Charles 2nd, an act was passed to prevent Papists from sitting in parliament; and in this, the second declaration, such as we take it at the table of the House, is enacted. reservation, and equivocation." By subsequent statutes, sometimes the one, and sometimes the other, of those declarations, are prescribed to be taken. Some classes of persons seem, at first sight, liable to both, but, by the perplexity of such superabundant caution, the majority of the king's subjects are become liable to neither. Nor does there appear any rational reason for the difference between them. They were framed originally in times of panic, and in times of panic they seem to have been subsequently reenacted; the little one being employed when the legislature was in little frights, while the greater one was reserved, for greater frights. But even in this point the legislature has not been always consistent. By the 13th William 3rd, which prescribes the oath of abjuration, it is enacted, that this oath shall be taken by all officers at the same time that they shall make and subscribe the little declaration. It happens, unluckily, that officers, naval and military officers at least, are required by the 1st of William and Mary, only to make the great declaration of the 30th Charles 2nd; and thus they are required to take this important oath at the same time that they make a declaration, which they need not make at all. And this mistake is not a mere absurdity. It affects the very question which we are now discussing, namely, whether the oath be a condition, subsequent or precedent; for the great declaration is to be taken previous to the entering into office, and the little declaration within three months after it. Again, the act of the 7th and 8th of William 3rd, prescribes that persons of the legal profession shall, before admission, take the oaths, and make the short declaration of the 25th Charles 2nd, though, by this act, three months after admission are allowed for the making such declaration. And again,-one would naturally suppose that if there were any servants of the Crown, whom it were politic to tie up more strictly than others, it would be those domestic officers called in the statutes the sworn servants of the Crown, who, by their familiar attendance, are the most responsible for the personal safety of the sovereign, and most likely by their intercourse to effect his political opinions; and on the other hand, if there be a class of his majesty's servants least likely to affect the personal safety or public councils of the monarch, and whom, therefore, the law ought, if it made any difference, to look at with the least jealousy, it would be an officer of the navy; and, according to this rational view, we find that naval officers were at first required only to take the short declaration, and the king's sworn servants the great one. But afterwards, by an unaccountable alteration, the stricter declaration was imposed upon the naval officer, and the follower of the court was indulged with the lighter. One fact more, and I shall have done on this point. Even in the indemnity act which we passed about a month ago, a similar confusion of terms prevails. The act of the 25th Charles 2nd, prescribing the one declaration, and the act of the 30th of the same reign, prescribing the other, are both recited; and yet the declarations are afterwards mentioned as one declaration, and indemnity is granted for not having made "the said declara tion." Surely, Sir, all these contradictions constitute another ground for inquiry. It cannot be denied that we ought, distinctly and without the necessity of a long legal research, to know what and which declarations are in force, and by whom and when they ought to be taken; declarations too of such very different import and extent, that I think it extremely probable that there are persons who might take one, and would refuse the other; declarations differing-I will not say quite so much as day and night-but differing as a very dark day and a very light one. So far I have considered the state of the tests on the English statute book. The confusion is at least as great on that of Ireland, because the acts which I have principally rested upon as affecting this question, namely, those of the 1st William and 1st George, and the acts of Indemnity are equally the law of Ireland; and to the difficulties which I have stated as arising out of these, the Irish law adds some peculiar perplexities of its own. Thus, for instance, by the act 33 Geo. 3rd, the Irish Roman Catholics are, upon taking the oath of allegiance already alluded to, enabled to enjoy all offices, civil and military, except about twenty specifically reserved, such as lord lieutenant, chief secretary, commmander-inchief, chancellor, judge, and so forth. A papist says that act, may not be any of these; but I say, in the words of the law, and on the construction of the general body of the statutes, that a Roman Catholic may be all these. In the first place, how are we to discover that a person is a papist, for this act does not tell us it? "Oh, but," it will be answered, "the old law provides us with the means of detecting a papist. First, catch your papist, and then offer him the great declaration or the little one; and if he refuses to take them, habes confitentem. These declarations are a kind of chymical tests, which when properly applied, will discolour a papist, look he ever so clear, and render him unfit for use." But now, Sir, unfortunately for this chymical process, there is no law, that I know of, by which you can apply it to any of the excepted offices: To none of them can it be applied till six months after the acceptance of the office, and, by that time the officer will be virtually protected from its effect by the act of indemnity. And, in point of fact, some of the most important of these officers never do take any oath or test whatever. I appeal to my right hon. friend behind me (Mr. Peel); I appeal to my hon. friend on the floor (Mr. Grant), the late and the present chief secretaries; whether either of them took any oath or test whatever on their admission to office. I perceive that my right hon. friend behind me intimates that he did when he was sworn a privy councillor; true, I know he did. But, in reply, I will remark that the secretary for Ireland is not of necessity a privy councillor, and that it is not as secretary that he is sworn. But I will go still farther, and I will show him that, even as a privy councillor, he is not bound to take the oaths and declarations in question; and, thirdly, I will show that if, as a privy councillor, he is bound by law to take them, he has not taken them according to law. In the first place, it is so little a matter of inevitable necessity, that the secretary should be a privy councillor, that my right hon. friend on the floor (Mr. Grant), was secretary for a considerable time before he was sworn of the privy council. If some zealous Protestant had laid hold of him, and fancied that he had caught a latent papist we know, fortunately, that, with regard to my right hon. friend, he would have been mistaken-but, if he had found a real Papist, he would have been still more so; for what could he have done with him? Of course he would have immediately tried his chymical test upon him, and offered him the declaration. The secretary, occupied in the duties of his office, would have had little leisure and less inclination to indulge the political or religious curiosity of the investigator; and, if he made him any answer, would have simply said, that by the act, which imposes those oaths and declarations upon official men, he had six months longer to consider about taking them; and if, at the end of the six months, the inquirer should be so public spirited as to prosecute the secretary, and so happy as to obtain a verdict, the victorious plaintiff would, by the time that he had arrived at final judgment, find himself totally defeated by the previous intervention of the Indemnity act; and thus we should, in spite of our pains and penalties, have a Roman Catholic secretary for Ireland. Equally dangerous would it be to the Protestant establishment in church and state, to have a popish commander-inchief. He, indeed, has the power of the sword, which in Ireland is no nearly allied to the power of the state; "no, no, it is quite impossible to permit him to be a Papist, and even the act of indulgence expressly excludes him."-But again I will venture to assert, that the commanders in-chief of late years have not, as such, taken any test whatever; and that, by the laws now in force, they are not compelable to take any. What then is to be done? Alas, Sir, nothing, but to acquiesce, however reluctantly, in having a popish commander-in-chief, if the Crown should please to select one; unless, indeed, parliament could be persuaded to retrace its steps, to resume indemnities which have lasted for a century, and set out on a retrograde march into the dismal regions of penalty. But, Sir, it may be said, as I have already intimated, that these officers are generally privy councillors; and now I must endeavour to fulfil my pledge, by showing as I think I shall most fully do, First, that a privy councillor, is not by law obliged to take these oaths; and secondly, that if he were, the mode in which it is practised does not satisfy the law. First, I do not any where find enumerated among the offices for which a qualification is necessary, that of privy councillor. It might perhaps be doubted whether it be included under the expression" Place of Trust;" but I must not descend to any chicanery on this subject. I am not here arguing for a paltry victory of words. Impressed with a strong sense of duty, I am endeavouring to convey to the House my honest opinions on the subject; and I do so with the expectation and desire, that what I urge may be fully and candidly examined. I, therefore, Sir, hasten to waive all such verbal objections and subtleties; the place of privy councillor is of great dignity and trust; it is, or ought to have been, included in the general rule; and I will therefore assume that the acts which apply to other great offices of the state apply to this also; but then, Sir, I must deny that such acts are more applicable, or rather I should say, applicable with greater celerity, to this than to other offices; and then, Sir, I am entitled to return to the argument with which I set out, and to assert (until that argument shall be disproved), that a privy councillor, like every one else, is entitled to the indulgence of the combined acts of Geo. 1st, and of the indemnity bills; but if he be not, and if the oaths are specially required from him, then I will say-and with some degree of confidence-that taking the oaths, and making the declaration at the council board is not sufficient; and that if omitting to take them be an offence, the taking of them there is no diminution of such offence. I am not, Sir, about to deny the power of the king in council to administer these or any other lawful oaths; but I assert, that, when a power superior to that of the crown,-I mean the united act of the three branches of the legislature, directs that oaths shall, for any particular purpose, be taken at a given time and in a stated place, the taking of them at another time, and in a different place, does not satisfy the law. The oaths and declarations of qualification, it will, I think, be admitted upon all hands, must be taken specifically" in one or other of the great courts of law, or at the general sessions of the peace; and though the taking these oaths in any other place, may be inno- | cent, the doing so is mere surplusage, and can neither relieve the taker from any of the penalties, nor entitle him to any of the immunities of the law. Nay, Sir, this is so undeniable, that great care is taken in all the acts to provide that the subscription to these oaths and declarations shall be of record. It is quite evident, that an oath before the privy council in the supposed case would not be of record, and that not only the letter, but the spirit of the law would be violated. The oaths therefore, which, for a long series of years, I believe, have been taken only at the council board by persons admitted to the privy council, are, for the purposes of qualification, wholly nugatory, and as if they had not been made. If then the privy councillors are not indemnified, a great number of the most exalted characters of both countries are in jeopardy; and if they are indemnified, a Roman Catholic not going through the vain form of taking these oaths in an unavailing time and place, would be equally indemnified. But here, Sir, I am aware an objection will be urged against me, arising out of the old and invariable practice; and I shall be asked, "Why, if I allow so much weight to the custom which has prevailed of omitting the oaths in other cases, I should treat so lightly the invariable custom of taking them in this?" I think, Sir, I can sufficiently answer this objection, by accounting for the practice; and I shall do so by an argument that applies to the cases of the chancellor and the judges, as well as to that of the privy councillor. Each of these employments has attached to it a distinct oath of office. Those oaths are, gerally of high antiquity; some of them, I believe, are by common law, and others are prescribed by statutes so ancient that they may be almost considered as the common law. They all existed prior to the qualification oaths which are now under our discussion; and for obvious reasons of common sense, it is necessary that such oaths of office should be taken on admission into office. When, therefore (which I have admitted was the case prior to the first George 1st,) the oaths of qualification were also to be taken on admission to office, it followed naturally that all the oaths were taken at the same time and place; and when afterwards the time for taking the qualification oath was postponed, the oath of office would still continue to be administered as before. It therefore, not unnaturally happened, that the postponement of the oath of qualification being granted as a matter of convenience, persons who were forced to take the oath of office on their admission, did, for the same purpose of convenience, take that opportunity of qualifying themselves; and this, Sir, I take to be the true reason; why the chancellors and judges continue to take the oaths of office and the oaths of qualification at the same time; with regard to them the proceeding is strictly legal, for they swear in one of the courts prescribed by the act, and their oath is of record. But there is nothing that I can discover to prevent a judge, if he should be so inclined, from taking the oath of office on his admission to the bench, and from postponing the other oaths to the longest period the law would allow him; and Iown, Sir, if my view of the subject be correct, and if there be not some fallacy in my argument which I cannot myself detect, I should be glad to see some of those learned and eminent persons expounding the law by their practice, and ascertaining that they are not excluded from the same indulgence of time which is allowed to the rest of his majesty's subjects. In the same way, it may have been, for aught I know, lawful, to the privy councillors, under the ancient acts, to take all the oaths at the council-board; and they having likewise to take what I may call an oath of office, have continued for convenience' sake to take the oaths of qualification at the same time, without adverting to the later provisions of the law which require the taking of the latter in one of the courts of record. This supposition derives a stronger corroboration from a circumstance of which I have been informed, and which I believe to be correct, though I cannot vouch for it from my own knowledge. I am told that the book from which the oaths are at this day administered to privy councillors, is of so old a date, as to be of the time, if not of king William, at least of queen Anne; and that the words "Our sovereign lord king William," or "Our sovereign lady queen Anne," have been erased, for the purpose of inserting "Our sovereign lord king George." If this fact, Sir, be true, it will be a strong additional proof that the practice of taking all the oaths at the council board existed before the acts of relaxation were passed, and |