The Lord Chancellor (Tenure of Office and Discharge of Ecclesiastical Functions) Act 1974 last week received the Royal Assent. It states: "For the avoidance of doubt it is hereby declared that the office of Lord Chancellorship is and shall be tenable by an adherent of the Roman Catholic faith."
By MICHAEL PENTY
This Act of Parliament really does turn the last page of a volume of the Statute Book which opened with thL. Act of Uniformity of 1559 and continued with various Acts passed between then and 1736 under which professing Catholics were either penalised by fine, imprisonment, or early on, even death, or later (since the Test Act 1672) by discrimination in public and private life.
These "penal" laws fell roughly into three periods. In the first — up to the end of the reign of James I (about 1625) — the objective of government could he said to be the procuring of religious conformity (applying the principle accepted at the end of the religious wars in Germany by the Treaty of Augsburg in 1555, cujus regio, ejus religio).
.1.his was not, of course, an attitude in England peculiar to Protestant rulers; religious dissent • had been punished by savage penalties by laws enacted by pre-Reformation parliaments — for example — the Heresies Act of Henry IV (1414), not repealed until 1676.
In the second in the time of Charles II — obstacles to Catholics (and Dissenters) infiltrating public life were constructed with the object of consolidating the new status quo established following the Restoration in 1660.
The third period began in 1688. The new government (William III arid Mary II) abandoned any attempt to compel religious conformity. accepted the fact of non-conformity, but concentrated in Sk`nneWhili coldblooded fashion on making life in its, social, • financial and economic aspeets as difficult as possible for Catholics. with the purpose of driving them to the bottom of' the social and economic scale where their influence on the life of the nation, if not eliminated, would. be
Montesquieu. the great 18th century French jurist, remarked of such laws: ". . . they are so rigorous, though not professedly of the sanguinary kind, as to do all the hurt that can possibly be done in cold blood."
How did laws of these later periods operate? For a time there were express prohibitions .against living within 15 miles of London, carrying on the profession of a schoolmaster. practising as an attorney (the then
name for a solicitor), or a barrister.
But for public office, civil or military, anyone appointed to a post had to subscribe to a series of declarations and oaths prescribed cumulatively by a series of Acts between 1677 and 1736, of which the powers-thatbe no doubt reckoned, because of their wording, would not be taken by anyone who was a conscientious Catholic.
They provided for public denial of papal claims to have powers of deposition of rulers (claimed by Pius V as regards Elizabeth Tudor in 1570), the propOsition of transubstantiation. and, as idolatrous and superstitious, the invocation or adoration of the Virgin Mary or any other saint, and the sacrifice of the Mass.
There were also requirements (until repealed in 1828) for taking the sacrament after the ritual of the Church of England.
It is riot the purpose of this article to examine how these, penal laws came, as is generally known. to be brought substantially to an end by the Catholic Relief Act of .1829, but to draw attention. to what is much less well known — the continuance of diserimination, notwithstanding the Act, against Catholics being appointed to a number of important (and well paid) public offices.
To understand the problem, which has continued until 1974, one must grasp how the 1829 Act operated to let Catholics "off the hook."
It did not repeal any of the objectionable oaths, which even a Moslem or Jew could conscientiously take; it provided for an alternative Form of oath (the CathOlic oath) that could be taken conscientiously by a Catholic.
But section XII qualified this by providing that as regards a curious assortment of public offices — such as Lord Lieutenant of Ireland. Lord Chancellor of Ireland, Lord High Commissioner of the General Assembly of the Church of Scotland, Lord Chancellor, or Lord Keeper — nothing in the Act should extend "to enable any person otherwise than he is now by law enabled to hold or enjoy' them.
So here the Catholic oath was not available, and I should point out that all through the penal times there was never any direct legal prohibition on a Catholic being appointed to public office. The only requirement was that anyone appointed, including a Catholic, should take the oaths and declarations.
Between 1829 and 1871 all these oaths and declarations (including the Catholic oath) — and the Acts containing them-were altered or modified, and ultimately repealed in 1871, by the Promissory Oaths Act.
However, four years before, in 1867, Parliament passed a very short Act of two sections — the' Test Abolition Act — section one of which provided that any requirement of any Act that the Declaration against Transubstantiation of 1677 (the only one then remaining) should be taken "as a Qualification for the Exercise or Enjoyment of any Civil office . . ,'' was repealed, and it should not be "... obligatory for any Person hereafter to take. make, or subscribe the said Declaration as a Qualification for the Exercise or Enjoyment of any Civil Office, Franchise or Right within the Realm."
That would appear to have settled matters, but there was a sting in the tail — the second section — which is so vital that I set it out in full: 2. Nothing in this Act contained shall he construed to enable any Person professing the Roman Catholic Religion to exercise or enjoy any Civil Office, Franchise. or Right for the Exercise or Enjoyment of which the taking, making, or subscribing the Declaration by this Act abolished is now by Law a necessary Qualification, or any other Civil Office, Franchise, or Right from which he is now by Law excluded,
And this has been the cause of the trouble ever since, for the 1871 Act left this 1867 Act unrepealed, and it is still on the Statute Book.
What did Section 2 mean'? Sir John Coleridge, then AttorneyGeneral, in 1872 described several different and contradictory views, and one of these was that the requirements as to taking oaths or Declarations abolished by Section I were reenacted de novo against Catholics by Section 2. Prime IVtiensters, actual or potential, were put on the spot, as illustrated by the desire of Gladstone, then Leader of the Opposition, to ensure that should the Liberals win the 1892 general election (which they did), he would be able to appoint Sir Charles Russell, Attorney-General in his previous administration, as Lord Chancellor.
So, in 1891. he introduced a private member's Bill -the Religious Disabilities Removal Bill (No 4) —1which he described as being one "for removing
from the Statute Book of this country an anomaly, an injustice and a discredit" and went on to say:
". . when Parliament repealed the Test Act it had no distinct and specific intention of opening these Offices to Roman Catholics . . it is quite plain that if the law is doubtful it ought to be made clear. It is quite plain that no person charged by Her Majesty with the solemn duty of forming a Government in this country could venture to recommend to Her Majesty this or that individual for either of these great offices (i.e., Lord Chancellor, and :Lord lieutenant or Ireland). while there was the smallest doubt attaching to the law which would place the salidity of his Acts in controversy."
The Bill was defeated by a majority of 256 to 224.
Over the years there were further signposts recording this problem. l'he Government of Ireland Act 1920 had to provide that "no subject of His Majesty should be disqualified from holding the office of Lord Lieutenant of Ireland on account of his religious belief" so that Timothy Healy might be appointed.
Then Lord Simon (then Lord Chancellor), in 1943, when the issue (now in practice confined to the office of Lord Chancellor) was raised in the House of Lords, said:
"1 will go further — and here again I believe 1 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."
and the trouble remained until now.
The passing of this Act has been due in the parliamentary scene to the concern, efforts and skill of Lord Hailsham of St Marylebone. But he in turn might have had considerable difficulty in so doing without the laborious study and examination of the problem by the Plowden Legal Society which undertook the task, sonic ten years ago, at the initiative and with the continuing support of Sir Henry Slesser (Solicitor
General in Ramsay Mac Donald's administration of 1924 and a member of the Court of Appeal from 1929 to 1940).
I have often been asked: Why bother? Apart from the obvious breach of the European Convention on Human Rights. this trouble does mean that as regards a principal Office of State, the best man would always be passed over if he happened to be a Catholic. What, 1 see I asked, when my article "The Last Penal Relic ' appeared in Quis Custodiet? (now renamed "Law and Justice") in 1970, could happen if nothing is done, and suggested: Is it too fanciful to envisage, following the appointment of a Catholic as Lord Chancellor, counsel instructed by, let us say, the Rev. Ian Paisley MP, as a private relator, applying to the Queen's Bench Divisional Court for an injunction (in lieu of information in the nature of a quo warronto) to restrain the new Lord Chancellor from so acting until he should have taken the 1677 Declaration, and for an order that unless he should do so within a specified period of time the office be declared vacant?
Immediately after this had appeared, worthy of a "whodunnit," there came to light a remarkable and fascinating piece of history. The publication of "The Last Penal Relic" stirred a memory of an item in a book — the autobiography of Viscount Haldane of Cleon, a most successful Minister of War (1908 – 1912), and later Lord Chancellor — which had appeared in 1929. Lord Haldane had recalled from his days of practice at the Bar at the turn of the century, being instructed (jointly with Mr Joseph Walton, QC; Ivir R. M. Bray, QC; and Mr J. E. P. Wallis) in a quite extraordinary manner by means of a blank sheet of paper which recorded nothing but the questions to be answered.
Still more dramatic, on the basis of this piece of intelligence, was the discovery of the original opinion, dated February 9,1900, from some old papers, which might well in the meantime have been destroyed, in the possession of a highly respected and long established firm of London solicitors.
This set out the questions put to the four learned counsel: "I — Whether a Roman Catholic is eligible for the post of Lord Chancellor, and "2 — Whether a Roman Catholic is eligible for the post of Lord Lieutenant of Ireland," who after a meticulous survey of the penal statutes and their repeals (which confirmed in every detail the analysis in "The Last Penal Relic") concluded unanimously: "In the result. therefore, our opinion is that Roman Catholics are since July 13, 1871. eligible for each of the offices of Lord Chancellor and Lord Lieutenant of Ireland."
This piece of weighty and confirmatory evidence on the problem had its bizarre side since, as Viscount Haldane recorded, the opinion had been sought anonymously, although he did not know it at the time, on the apparent instructions of a client "with a name associated with Protestantism," who in fact, as it turned out years later, did so on behalf of the first Lord Russell of Killowen, whom Gladstone, frustrated by the Conservatives over his private member's Bill in 1891, had, when a vacancy had occurred. appointed to the office of Lord Chief' Justice!
So now, the last page of the last chapter of that volume of the Statute Book has been turned, and the covers closed.
There is now no longer any doubt that there is 'no disqualification of a religious nature to any office of State, and Catholic members of the Bar, present and future, have to thank all those from outside their profession for at last putting in their blue bags the lawyer's equivalent of what every private soldier should aspire to have in his knapsack — a field marshal's baton!
Michael .Penty is editor of Quis Custodiet published by the Edmund Plowden Trust.