GUIDE

ΤΟ

THE LAWS OF ENGLAND

AFFECTING

ROMAN CATHOLICS.

CHAPTER I.

ROMAN CATHOLICS.

In the modern language of the law, those who acknowledge the religious supremacy of the see of Rome, and are in communion with it, are called Roman Catholics. By the 31 Geo. III. c. 32, those persons professing the popish religion, or holding communion with the see of Rome, who desired to take the benefit of that act, were required to swear in terms that they professed the Roman Catholic religion. No such clause is contained in the oath now appointed to be taken by them: yet the same appellation of Roman Catholic continues to distinguish persons of that church in all the acts that have followed the 31 Geo. III. c. 32 (a).

In all the penal acts they were styled Papists, Papishes, or persons professing the popish religion. This name has been generally considered one of reproach, and a learned writer has remarked that the more modern is also the more liberal distinction (b). It was not introduced, however, at the period of the first Relief Act (c).

(a) See the 10 Geo. IV. c. 7; 2 & 3 Will. IV. c. 115; and the subsequent acts cited in the course of this work.

(b) Toml. Jacob's Law Dict. tit. Papists.

(c) 18 Geo. III. c. 60.

B

Roman Catholics continued to be described as papists and popish persons until the passing of the 31 Geo. III. c. 32, which was the next in order.

Neither the ancient nor the modern names are older, of course, than the Protestant Reformation in the sixteenth century. Previous to that event there existed no reason for their receiving any specific appellation whatever. In old acts of parliament, the king's lieges are sometimes spoken of as matris ecclesiæ fideles. But communion with Rome being at that time warranted at law, those in such communion were known to the law only as members of the Established Church, and by no means because of their foreign communion.

In reviewing the present state of the law as it affects Roman Catholics, it will be necessary to observe two great divisions of inquiry. The Relief Acts did not absolutely repeal all the oppressive enactments from which they were intended to relieve Roman Catholics. By far the greater part of these continued in force, notwithstanding the Relief Acts. The legislature never meant to emancipate the consciences of any Roman Catholics, but such as were willing to give securities not to weaken the established institutions in church and state. Scarcely a single concession can be named, in fact, to which conditions are not inseparably attached by the enactment itself. If any Roman Catholic should be desirous of the relief afforded by the measure, he must prepare himself to accept the terms on which it is afforded. If he declines the terms, he deprives himself of the relief; and, with a very trifling exception, all the penal code continues to be in force against him. It may even be reasonably doubted whether such a person is entitled to the more liberal designation of Roman Catholic. Not within the Relief Acts for one purpose, it seems difficult to understand that he can place himself within them for another.

What the terms or conditions alluded to are, will be

presently considered. In the meantime it may be observed that their effect has been to divide the Roman Catholics of England into two distinct sections. The disabilities affecting these will be more conveniently handled under a corresponding division of this treatise. We shall first inquire into such as are general,—affecting all Roman Catholics alike, whether qualified under the Relief Acts or not. In the next place we shall limit our inquiry into such as exclusively concern certain Roman Catholics, by reason of their not being qualified under those enactments. We shall hereafter consider both of these in their above order. But, for the present, it may be not altogether out of place to premise here a short view of the principal conditions which are attached to the relief afforded by the enactments in question.

B 2

4

CHAPTER II.

THE ROMAN CATHOLIC OATH.

UNDER the 10 Geo. IV. c. 7, intituled "An Act for the Relief of His Majesty's Roman Catholic Subjects," (sections 2 to 23,) the following oath is to be taken by the Roman Catholics of this realm in lieu of all other oaths and declarations prescribed by former Relief Acts, except the oath formerly taken by them to enable themselves to hold property, that oath being abolished by section 23. Nevertheless, the oaths of allegiance and disavowal of the Stuart line must still be taken under the 6 Geo. III. c. 53, s. 1, and the 1 Geo. I. st. 2, c. 13, ss. 10, 11, whenever required so to do, under the pains. of popish recusancy convict in case of refusal, (see post, p. 19). For neither of those acts was a relief. act, nor consequently are they within the meaning of the above enactments (d).

'I, A. B., do sincerely promise and swear, That I will be faithful and bear true allegiance to her majesty Queen Victoria, and will defend her to the utmost of my power against all conspiracies and attempts whatever, which shall be made against her person, crown, or dignity. And I will do

(d) Sixth Report of Commissioners on Criminal Law, p. 97. It should be mentioned, too, that the language of the 23rd section of the 10 Geo. IV. leaves it very doubtful what is the true construction of it. "No oath or oaths shall be tendered to, or required to be taken by, &c. for enabling them to hold or enjoy any real or personal property, other than such as may by law be tendered to and required to be taken by her majesty's other subjects." The literal

sense of this clause would import that Roman Catholics are deprived of the benefit of the former Relief Acts, and must take such oaths as may still be required of Protestants, unless they have protected themselves by qualifying under the 10 Geo. IV. c. 7; but probably, by a liberal interpretation of a remedial enactment, the courts would understand such oaths to have been intended as are necessary to the holding of property by other subjects; viz., none at all.

my utmost endeavour to disclose and make known to her majesty, her heirs and successors, all treasons and traitorous conspiracies which may be formed against her or them. And I do faithfully promise to maintain, support, and defend, to the utmost of my power, the succession of the crown; which succession, by an act intituled, An Act for the further Limitation of the Crown, and better securing the Rights and Liberties of the Subject, is and stands limited to the Princess Sophia, Electress of Hanover, and the heirs of her body, being Protestants; hereby utterly renouncing and abjuring any obedience or allegiance unto any other person claiming or pretending a right to the crown of this realm. And I do further declare, That it is not an article of my faith, and that I do renounce, reject, and abjure the opinion, that princes excommunicated or deprived by the pope, or any other authority of the see of Rome, may be deposed or murdered by their subjects, or by any person whatsoever. And I do declare, That I do not believe that the Pope of Rome, or any other foreign prince, prelate, person, state, or potentate, hath or ought to have any temporal or civil jurisdiction, power, superiority, or pre-eminence, directly or indirectly, within this realm. I do swear, That I will defend to the utmost of my power the settlement of property within this realm, as established by the laws. And I do hereby disclaim, disavow, and solemnly abjure any intention to subvert the present church establishment, as settled by law within this realm. And I do solemnly swear, That I never will exercise any privilege to which I am or may become entitled, to disturb or weaken the protestant religion or protestant government in the United Kingdom. And I do solemnly, in the presence of God, profess, testify, and declare, That I do make this declaration and every part thereof, in the plain and ordinary sense of the words of this oath, without any evasion, equivocation, or mental reservation whatsoever. So help me God."

Time and Place of taking the Oath, in general.

All persons professing the Catholic religion, and desirous of being relieved from the disabilities, incapacities, and penalties, specified in the various Relief Acts (except the disability of holding or enjoying real or personal property), may personally appear in any of the courts of Chancery, Queen's Bench, Common Pleas, or Exchequer, at Westminster, or in any court of General Quarter Sessions for the county, city, or place, where such persons shall reside, and there, in open court, between the hours of nine in the morning and two in the afternoon, take and subscribe the above oath. (10 Geo. IV. c. 7, s. 23; 31 Geo. III. c. 32, s. 1.)